JEFFREY. EPSTEIN,-¶
Plaintiff,¶
vs.¶
SCOTT ROTHSTEIN, individually, and J. individually.¶
Defendants.¶
IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA¶
CASE NO.: 502009CA040800XXXXMBAG¶
JUDGE:¶
PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S PONSE IN OPPOSITION TO DEFENDANT/COUNTER-PLAINTIFF RENEWED MOTION FOR LEAVE TO ASSERT CLAIM FOR PUNITIVE DAMAGES AND MOTION FOR SANCTI S AGAINST DEFENDANT/COUNTER-PLAINTIFF¶
Plaintiff/Counter-Defendant Jeffrey Epstein, by and through his undersigned counsel and pursuant to Rule 1.190(f) of the Florida Rules of Civil Procedure, §768.72 of the Florida Statues, and this Court's prior ruling on July 13, 2011, hereby files this Response in Opposition to Defendant/Counter-Plaintiff Renewed Motion for Leave to Assert Claim for Punitive Damages and Motion for Sanctions > against Defendant/Counter-Plaintiff In suppno got Plaintiff/Counter-Defendant Jeffrey Epstein states: :4>¶
CCinf—t" I?, an zcc-) to 0¶
PROCEDURAL HISTORY OF PUNITIVE DAMAGES ISSigf:¶
On October 19, 2010, Defendant/Counter-Plaintiff Edwareinafter -n N. "Edwards") filed his first Motion for Leave to Assert Claim for Ptutitive Damages against ,. Plaintiff/Counter-Defendant Jeffrey Epstein thereinafter "Epstein"). This Honorable Court denied that motion on July 13, 2011, after an extensive and lengthy hearing, citing as grounds therefor the glaring procedural deficiencies contained in Motion. A true and correct copy of the transcript of the hearing at which the Motion was denied is¶
attached hereto as "Exhibit A." On August 17, 2012, filed his Renewed Motion for Leave to Assert Claim for Punitive Damages. The renewed motion is identical in all material respects to the original Motion that this Court denied, yet requests that this Court grant this Renewed Motion without having addressed, corrected, or adapted the glaring deficiencies therein that were previously explicitly rejected by this Court. This Court specifically directed M, in meticulous detail, as to how he was required to correct the procedural deficiencies endemic to the original Motion. however, has failed to either heed to this Court's Order or abide by the basic requisites to assert a motion to plead punitive damages. For this reason, as explained more fully below, Renewed Motion for Leave to Assert Claim for Punitive Damages must be denied and Sanctions awarded for b ttsregard of this Court's previous ruling.¶
A. This Motion was Already Denied byi Court as Procedurally Deficient¶
Motion' for Leave to Assert Claim for Punitive Damages against Plaintiff/Counter-Defendant Jeffrey Epstein was previously denied by this Court, yet he re-filed the identical Motion, which must also be denied. First, two-page Motion is corn \ *sed of an introductory paragraph and four short numbered paragraphs. It cites nei ural authority nor any law pursuant to which his request to claim pwativ lamages is permitted. While the glaring absence of rules of civil procedure and case law in pleadings is routine, this Court has already ruled that it is neither tolerated by this Court nor accepted in a Motion for Leave to Assert Claim for Punitive Damages. As such, the same procedural deficiencies should not be permitted in his¶
I Because the Motions are identical, with the exception of the Certificate of Service Date and addition of new attorneys, Epstein will reference each as the Motion and the Renewed Motion, respectively.¶
Renewed Motion.¶
Next, Renewed Motion, like his first Motion, endeavors to improperly incorporate the record evidence from his previously-filed Motion for Summary Judgment; the very same act that this Court has already ruled impermissible. As this Court is aware, Motion for Leave to Assert Claim for Punitive Damages must prove to the Court an entitlement to plead a claim for punitive damages. To properly do so, must demonstrate a reasonable basis upon which to assert this claim. See FLA. R.Civ. P 1.190(0. To establish a reasonable basis, both this Court and the Florida Rules of Civil Procedure require a "written summary of evidence, complete with deposition testimony and affidavits as part of the motion for punitive damages." Fla. R. Civ.P 1.190(f). This Court, in denying the Motion, explained to required under Rule 1.190(f) to pass muster procedurally. This Court declared: what is¶
[Rule] 1.190, which is the rule on amended and supplemental pleadings, was amended in two thousand, I believe, 2003 pursuant to Florida Statute 768.72 to give guidance as to how you go about doing this. And the footnotes to the Civil Rules of Procedure... cites it to [sic], it says that subsection is amended to comply with the case of Beverly, Beverly Health And Rehabilitation Services, Inc. versus Meeks. And I have been applying this case before they actually incorporated it into the rules, but that case specifically said, it set up a procedure, at least, in the Third District for motions for punitive damages. And, I'll quote from paragraph — I don't know what page it is here. But, basically, says this — and I've been applying this in the past as well. Accordingly, it is and shall be the practice of this Court to require a written summary of the evidentiary proffer with appropriate page and line citations, deposition testimony, affidavits need to be filed and served in advance of the hearing so the defendant will have a reasonable opportunity. The motion doesn't do that.¶
See Transcript from July 13, 2011 hearing page 36; line 9- page 37; line 4 (emphasis added). Because Motion failed to provide "a written summary of the evidentiary proffer with appropriate page and line citations, deposition testimony,¶
affidavits," the Court determined that the Motion was procedurally deficient and denied same.¶
repeatedly disagreed with this Court's assessment that his Motion did not comply with Rule 1.190(f) of the Florida Rules of Civil Procedure and §768.72 of the Florida Statutes, and in support of his assertion recited to the Court the introductory paragraph from his Motion, arguing again that by referring to the previously-filed record evidence, he incorporated that record evidence into this Motion for Leave to Assert Claim for Punitive Damages. This Court flatly rejected argument, and cautioned that incorporating previously filed ' ings" into other documents is not acceptable procedure for any motion. The Court further commanded to present each piece of record evidence in support of a particular motion contemporaneously therewith; which he has still failed to do. This Court directed to adhere to the following straightforward, unadorned instructions:¶
I want you to make a motion pursuant to what I have just said. I don't want any incorporated things, you know . . . You know, when you incorporate something else that doesn't work for me. I need it in front of me. I need the page, line so I can read it as a motion . . . Again, Mr. Scarola, we're going to do it my way.¶
Transcript from July 13, 2011 hearing page 38; lines 4-25. The Court continued:¶
I want you to file your motion, set it for hearing and I'll look at it. And then it goes on to say that what happens is the other side, okay, this has to be done, at least thirty days, at least, this rule says thirty days before the motion, before the motion is set for hearing. To give the opportunity for the defendants to file something specifically in opposition, page and line and that way I can compare and contrast. That's the way I like to do it. It's very complex in these cases and, you know, I just. do not have the ability to go back and do it. So I want you to do that.¶
Transcript from July 13, 2011 hearing page 39; lines 2-14. In response to the final instruction, replied: "I understand the Court's Direction." Transcript from July 13. 2011 hearing; page 39; line 15. However, as demonstrated by filing of his "Renewed Motion," which contains the same glaring deficiencies, the Court's admonition was disregarded. Consequently, Motion must be again denied by this Court.¶
B. The Renewed Motion is Procedurally Deficient and in Direct Contravention with this Court's Prior Ruling. Mandating Sanctions¶
filed and served his Renewed Motion for Leave to Assert a Claim for Punitive Damages on August 17, 2012. This renewed Motion, however, is the original Motion with which this Court took serious issue and flatly denied. Word for word, line by line, this motion reads exactly as the previous Motion that was denied by this Court; with the exception of the certificate of service date and the list of parties upon whom it was served. M, with flagrant disregard for this Court's prior ruling irrefutably fails, yet again, to meet even the essential pleading requirements; to wit: fails to cite to proper authority in support of his assertion; fails to prove an entitlement to a claim in punitive damages; fails to provide a reasonable basis upon which to base an entitlement to a claim in punitive damages; fails .to attach or file any record evidence on which this motion is based; fails to provide a written summary of the proffered evidence; fails to provide deposition testimony; and fails to provide affidavits. As such, because the original Motion was denied for its failure to comply with the procedural requisites as delineated not only by the applicable law but also by this Court, so, too, must this Motion. 4¶
Finally, filing of this identical Motion to Assert a Claim for Punitive Damages that was already denied by this Court irrefutably corroborates that he completely disregarded this Court's Order, mandating sanctions. At the hearing at which was admonished for filing the Motion the first time, acknowledged¶
that he understood the court's explicit direction, yet he failed to follow same. See Transcript from July 13, 2011 hearing; page 39; line 15. A court has the inherent power to implement and enforce effective judicial proceedings pursuant to pretrial rules. As such, when a party fails to comply with a pretrial order, a court has broad discretion in determining sanctions. First Republic Corp. of America v. Hayes, 431 So. 2d 624 (Fla. 3d DCA 1983). Rule 1.380 of the Florida Rules of Civil Procedure like ' governs failure to comply with a prior court order and mandates that such failure "may be considered a contempt of the court." FLA. R. Civ.P. 1.380(b). Here, has not only snubbed this Court's order, but also caused Epstein to incur unnecessary expense in both responding to his Motion and attending this hearing. Accordingly, Defendant inapposite and patent disregard for this Court's Order mandates sanctions.¶
CONCLUSION¶
Accordingly, for all of the reasons delineated above and in reliance upon the applicable law cited herein and this Court's prior ruling, Jeffrey Epstein respectfully requests that this Court, yet again, deny Motion to Assert a Claim for Punitive Damages, award attorney's fees in favor of Epstein as sanctions, and such other and further relief Arts Court deems proper.¶
rt/L¶
Tonja Haddad Coleman, Esq. Fla. Bar No.: 0176737 LAW OFFICES OF IONIA HADDAD, PA 315 SE 7th Street Suite 301 Fort Lauderdale, Florida 33301 954.467.1223 954.337.3716 (facsimile) Tonja@tonjahaddad.com¶
WE HEREBY CERTIFY that a true and correct copy of the foregoing was served upon all parties listed below, via Electronic Service, this October 9, 2012.¶
Jack Scarola, Esq. Searcy Denney Scarola et al. 2139 Palm Beach Lakes Blvd. West Palm Beach, FL 33409 JSX@SearcyLaw.com MEP@Searcylaw.com¶
Jack Goldberger, Esq. Atterbury, Goldberger, & Weiss, PA 250 Australian Ave. South Suite 1400 West Palm Beach, FL 33401 jgoldberger®agwpa.com¶
Marc Nurik, Esq. 1 East Broward Blvd. Suite 700 Fort Lauderdale, FL 33301 marc@nuriklaw.com¶
!Jaffe J. Es Weissing 425 N Andrews Avenue Suite 2 Fort Lauderdale, Florida 3 bje.efile@pathtojusti¶
Lilly Ann Sanchez, E LS Law Firm Four Seasons Tower - 15th Floor 1441 Brickell Avenue Miami, Florida 33131 Isanchez@thelsfirm.com¶
Fred Haddad, Esq. 1 Financial Plaza Suite 2612 Fort Lauderdale, FL 33301 Dee@FredHaddadLaw.com 04¶
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IN THE CIRCUIT COURT, 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA¶
CASE NO.: 50 2009 CA 040800XXXXMBAG¶
JEFFREY EPSTEIN,¶
Plaintiff,¶
vs.¶
SCOTT ROTHSTEIN, individually, J. , individually, And L.M., individually,¶
Defendants.¶
* * * * * * * ****¶
HEARING BEFORE: HONORABLE DAVID.¶
DATE TAKEN: July 13, 2011¶
TIME: 10:34. a.m. to 4:45 p.m.¶
PLACE: Palm Beach County Courthouse 205 N. Dixie Highway, Room 9C West Palm Beach, Florida 33401¶
REPORTED BY: Kathleen M. Ames, RPR¶
+0¶
IN THE CIRCUIT COURT, 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA¶
CASE NO.: 50 2009 CA 040800XXXXMBAG¶
JEFFREY EPSTEIN,¶
Plaintiff,¶
vs.¶
SCOTT ROTHSTEIN, individually, J. AditiC, individually, And L.M., individually,¶
Defendants.¶
* * * * * * * * * * * * *¶
HEARING BEFORE: HONORABLE DAVID¶
DATE TAKEN: July 13, 2011¶
TIME: 10:34 a.m. to 4:45 p.m.¶
PLACE: Palm Beach County Courthouse 205 N. Dixie Highway, Room 9C West Palm Beach, Florida 33401¶
REPORTED BY: Kathleen M. Ames, RPR¶
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OF: , BURNETT, P.A. 901 Point West 777 S. Flagler Drive West Palm Beach, Florida 33401-6170¶
L. ACKERMAN, JR., ESQUIRE KNIGHT, ESQUIRE¶
WEINBERG, ESQUIRE¶
OF: IIIIII WEINBERG, P.C. 20 Park Plaza, Ste. 1000 Boston, Massachusetts 02116¶
JACK A. GOLDBERGER, ESQUIRE¶
OF: ATTERBURY, GOLDBERGER & WEISS, One Clearlake Centre, Ste. 14( 250 Australian Avenue South West Palm Beach, Florida 334¶
cos¶
APPEARING ON .BE HALlisse. THE PLAINTIFF¶
JACK SCAROLA, ESQUIRE¶
OF: SEARCY, DENNEiL, BARNHART & SHIPLEY, P.A. 7 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409.¶
APPEARING ON BEHALF OF DEFENDANT, (Sy +0¶
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MR. KNIGHT: Good morning, Your Honor.¶
THE COURT: Okay. We're here on Epstein versus¶
Rothstein, et al. I want to thank the party that sent me the whole list of motions and I appreciate it very much. And I did have a chance to go through most of the stuff and, quite frankly, it's kind of hard to get my arms around this. There is a lot to do. My thoughts is to first kind of set-up a schedule to determine where we should go today in terms of starting in one place and where we're going to go. And seems to me the first place to start is try to get the pleadings in order, in terms of the motions that are pending that have not been ruled on. Then I would like to find out, I mean, I re at least, the interim report from Judge Carney. I Judge Carney? And I want to find out what the stat uCi all of that is. And then I guess the best way to proceed, unless somebody has a better alternative, is to start with the motions in some type of chronological order. But before that, to kind of get an opening from both sides as to where they feel or why they feel these various issues should be decided in their favor. I know they are varied but just to give me some general background in terms of the case.¶
Having said that then, unless somebody has a better alternative, I would like to start with there is a pending¶
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motion to dismiss on the, I guess, it's the second amended complaint.¶
MR. ACKERMAN: It's the amended complaint, be the second complaint.¶
THE COURT: Which I've read in detail the motion. Also, I think, pending is still the motion for punitive damages in regard to the counterclaim and I don't* 1 t there is any other motions pending in regard t pleadings, are there? rO.¶
C . MR. SCAROLA: There are not, no.
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THE COURT: Okay. I me •ink I'm here to talk about all of those so why dojo' e start with the motion to dismiss because that kind of gets the thing rolling so start there. ' your motion, Mr. Scarola.¶
MR. SCARIGIDA. ank you, Your Honor. With the Court's permission$Imay I address the Court from a seated positionApda¶
THE COURT: Yes, I prefer you do that.¶
0S MR. SCAROLA: Thank you. Your Honor, this case started out with a thirty page, seventy-nine paragraph, five count complaint that read more like a press release than a legal pleading. And was the source of substantial procedural difficulty, as a consequence of the imprecision with which an effort was made to embroil in the Rothstein Ponzi scheme. We have moved from that¶
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 massive effuse press release to what is now a nine page, single count abuse of process case. The state civil remedy for criminal practices count gone. The state RICCO claim gone. The fraud claim gone. The conspiracy claim gone. And a whole new abusive process claim has now been asserted very different from what we were looking at previously. Indeed, the only allegation that attempts to associate with anything having to do with Rothstein is a claim that appears in Paragraph 20, which says, essentially, because so many RRA personnel, Rothstein, Rosenfeldt, Adler personnel, were involved in the prosecutions of what were, obviously, very meritorious claims on behalf of the child victims of Mr. Epstein's criminal molestations, because so many RRA_personnel were involved in the prosecution Edward, quote, "knew or reasonably should have known that his, Epstein's case files, were being shown and touted to investors."¶
18 19 20 21 22 23 24 25 Now, no allegation that he knew or reasonably should have known that they were part of a Ponzi scheme but on the non sequitur assertion that because there were a lot of people involved in these very important, very big cases. Mr. knew or reasonably should have known that someone was trying to attract investors to fund the prosecution of these claims. The first element of a motion to dismiss relating to that¶
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allegation is so what. A law firm has every right to raise funds to prosecute legitimate claims on behalf of its clients. And if all knew, which he didn't, but we must take the allegations of the complaint as true, if all he knew was, because there were a lot of people involved in the prosecution of these claims, he must have known that his files were being shown to and tout- to investors, that, certainly, can't form the bas cause of action.¶
Let's take a look at what this cop nt says did that constituted abuse ess.¶
THE COURT: Let me just say off the top here that I have one problem with the complaint because it lumps defendants together in numerous allegations without differentiating as to any of the defendants which one did what, if any, or all did.¶
MR. SCAROLA: Your Honor has anticipated one of the points that I would make and that, clearly, is one. But even assuming that all the defendants did all of the things that are claimed to have been done by the defendants, plural, let's take a look at what they say did. In the introductory paragraph they say that he is liable for abuse of process because of four things. One, he engaged in unreasonable and vexatious discovery within the context of claims that are never¶
1 2 3 asserted to have been anything other than legitimate claims. So one is unreasonable and vexatious discovery in the introductory paragraph not specified in any way.¶
4 5 6 The second is making unfounded allegations in his lawsuits on behalf of his clients who had legitimate claims.¶
7 The third is using improper investigative togl. Alialc¶
8 9 And the fourth, interfering with a non-pr Se ution Ci..) agreement.¶
10 11 12 13 14 15 16 17 18 C.) Now, of those four generally desc elements of wrongful conduct, the only category that could possibly involve process, which means the filing of a complaint, the filing of an answer to a complaint, the filing of some pleading or a subpoena. The only category that could encompass abuse of process arguably could be engaging in unreasonable and vexatious discovery. And we're going to look at what they claim the unreasonable and vexatious discovery was in just a moment.¶
19 20 21 22 23 24 25 We know from Paragraph 17 that the claims were not initiated while Mr. was an employee of RRA. Paragraph 17 tells us that he brought these legitimate cases, settled for very large sums of money voluntarily by the plaintiff. He brought those claims with him to the law firm. So it's not the filing of the claims themselves that's anywhere alleged to have been an abuse of process.¶
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Paragraph 27 says the defendants embarked a scheme to interfere with the non-prosecution agreement, quote, "for the purpose of upping the stakes of the litigation." Now, the non-prosecution agreement is the agreement that Mr. Epstein entered into with the federal government that allowed him, what we and our clients, or Mr. Edweet clients contend, was an improper and sweethear N. But attempting to challenge unsuccessfully, at leas c hus far e : unsuccessfully, a non-prosecution agreement on the basis that the victims had a right under federal law to be consulted regarding that agreement, which right was never afforded to them. Attempting to challenge a non-prosecution agre ) ,roi not possibly be abuse of process.¶
And to the ex ni that there might be some assertion that this was tortious interference in an advantageous business relationship, the law is very clear, and I'm prepared to cite the cases to Your Honor, if it's necessary. I don't know that this is going to be challenged. That unsuccessful interference is not actionable interference. A case calling Scheller versus American Medical International. So the allegations about the non-prosecution agreement, I suggest, are an absolute nullity. They can't constitute an abuse of process.¶
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Let's go on to Paragraph 29, because that's where presumably an effort is made to set out what the unreasonable and vexatious discovery is. Paragraph 29, Sub-paragraph One talks about asking three airplane pilots inflammatory questions during the course of the depositions of those airplane pilots. Asking questions is not an abuse of process. Asking airplane pilot questions cann Al..._ possibly have a causal connection to the damag AS' is (:12 r alleged by Mr. Epstein in this case.¶
Curiously the damages have also chafted dramatically. We are now told that the damages constitute fees and costs incurred in the underlying litigation, any claim for which was released in the underlying litigation. We will ask the Court to take judicial notice of the orders of dismissal of the three underlying claims, which require the parties to those cases to bear their own attorney's fees and costs. Mr. Epstein, having stipulated as part of the settlement that he was going to bear his own fees and costs, cannot claim as•damages, in this case, fees and costs incurred in the underlying litigation, if they could possibly form the basis of any claim of liability in light of the broad litigation privilege that exists in the state of Florida.¶
Let me address that very briefly. If I may approach the bench, I want to provide the Court with .a copy of the Florida Supreme Court decision in Echevarria,¶
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E-C-H-E-V-A-R-R-I-A, vs. Echevarria. That is the most recent Florida Supreme Court decision addressing the litigation privilege. It contains an excellent discussion of the Court's view of the scope of that privilege. And upon review of that case Your Honor will find that the Supreme Court has clearly and unequivocally held that conduct that occurs in the course of litigation i'k.1 overed by the absolute litigation privilege. The Coutrtinds, as a matter of public policy, that it would inappropriate Nos/ to allow the assertion of independant for conduct that occurs within the course and f litigation. That there are other available remedies, including ethics complaints against lawyers involved in such conduct, including contempt proceedings and the imposition of sanctions, which appropriately can control that conduct. And allowing the assertion of claims in independant actions for conduct that occurs in the course and scope of litigation would have an inappropriate and improper chilling effect.¶
So in light of that broad privilege, anything and everything that is asserted to have occurred in the context of the underlying claims, such as asking three airplane pilots inflammatory questions, first of all, does not involve an abuse of process. And, secondly, is privileged conduct.¶
Next paragraph, Sub-paragraph Two of Paragraph 29. Notifying Epstein of an intent to depose his high-profile friends.¶
THE COURT: Let me just ask you, I've not read, quite frankly, the Echevarria case but does it still stand for the proposition that for there to be a litigation 46, privilege it must be related to the legal proceed' itself?¶
MR. SCAROLA: Yes, sir.¶
C..) .¶
ily THE COURT: It can't be some c h like -- okay. MR. SCAROLA: If I were e a subpoena to -4\ Mr. for the sole purpose of causing him to miss an important business appointment where he was going to make a lot of money and I'm requiring him to be in Court with no legitimate connection whatsoever to the litigation that's involved, that could constitute an abuse of process. One of the elements clearly is that it must be related to the litigation. But any conduct that occurs in relation to the litigation is conduct that is protected by an absolute privilege.¶
There is a discussion of the Levin, Middlebrooks case where the Supreme Court makes clear that we're not just talking about statements made in the context of litigation but all tortious conduct that may be alleged. So it's a very broad privilege. It covers exactly the kind of¶
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conduct that is alleged to have occurred here in Paragraph One, which isn't conduct involving process in any case.¶
Paragraph 29, Two, notifying Epstein of an intent to depose his high-profile friends. Telling somebody I'm going to depose your friends isn't process. Issuing a subpoena is process. Serving the subpoena is process. Notifying somebody that you're going to depose hi riends, that's not process.¶
Asking Epstein outrageous questions in(tis, eposition, Sub-paragraph number Three, that's not process.¶
Sub-paragraph Four, requesting records from the federal government regarding communications between the government and Epstein lawyers. This is where the tortious interference with the non-prosecution agreement is alleged to have occurred because requests are made to find out about communications between Epstein and the federal government with regard to the very criminal activity that forms the basis of the civil lawsuits that Mr. is legitimately prosecuting on behalf of the child victims of Mr. stein's criminal activity, clearly, could not constitute abuse of process.¶
Paragraph Five, quite frankly, I just don't understand.¶
Paragraph 29, Five, reads the representative of the trustee for RRA's bankruptcy stated that there are¶
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thousands of documents involving RRA's employees and government officials, including state and federal law enforcement authorities relating to Epstein. What does that mean in the context of this abuse of conduct claim against ? It just doesn't make any sense. I can't respond to it because I clearly don't understand it.¶
Six is requesting records from Dr. Bard who it is claimed didn't treat Mr. Epstein. Well, okay, so what. guess one way to find out whether he treated Mr. Epstein is to subpoena any records that he has about Mr. Epstein. Subpoenaing records from a physician is not an abuse of process outside the scope of the litigation privilege.¶
Paragraph Seven, filing a second amended complaint alleging Epstein forced L.M. to engage in oral sex. Part of the litigation privilege clearly.¶
Attempting to depose celebrity airplane passengers. Clearly, within the course and scope of the litigation privilege in the absence of any allegation that this was entirely unrelated to the prosecution of the claims against Mr. Epstein, which allegation appears nowhere. No such allegation appears anywhere.¶
Nine, directing third-party subpoenas be used to obtain Epstein's prescriptions from pharmacies. Now, it doesn't say that the third-party subpoenas are ever¶
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issued but if we can infer that they were, this is conduct that clearly falls within the scope of the litigation privilege.¶
Paragraph 30 says that the defendants trespassed on Epstein's property and conducted surveillance of him. Now, without getting into the truthfulness of those allegations which must be taken as true, if, the defendants trespassed on Mr. Epstein's property, then there may be a cause of action for trespass. There is no cause of action for abuse of process because somebody trespasses on your property. There is no cause of action for abuse of process because somebody decides that they are going to surveil you.¶
Paragraph 31 says that Mr. Edwards tried to plead a RICCO claim. So what.¶
And Paragraph 32 says that he tried to freeze Mr. Epstein's assets. So what. That does not constitute abuse of process and to the extent it might be characterized as a use of process in the context of the litigation on behalf of his child victims of Mr. Epstein's repeated extensive criminal activity, it is covered by the litigation privilege.¶
There are three elements of damage that are alleged. Fees and costs in the underlying litigation, which cannot constitute damages in this case. And the installation of an enhanced security system, which presumably may have some¶
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causal connection to the trespass on Epstein's property and the conducted surveillance of him, but, certainly, has nothing to do with any abuse of process. And the retention of security personnel for Mr. Epstein's personal safety and to protect his property. Now, there is no possible causal connection between the alleged and privileged litigation misconduct and Mr. Epstein's desire for privacy.¶
Another significant problem that this complaint faces is that Mr. Epstein seeks to assert these claims by way of an amended complaint when he has repeatedly and persistently refused to provide any relevant or material discovery as a consequence of the assertion of his Fifth Amendment privilege. We have previously cited to Your Honor a number of cases, a substantial body of case law relating to the swordtshield doctrine. Mr. Epstein is seeking affirmative relief. I don't challenge the validity of his assertion of Fifth Amendment privilege. There is no doubt in my mind that he faces the potential of additional criminal prosecution. There are new claims that Mr. Edwards himself has placed the defendants on notice that he is about to file so there is no doubt about the fact that Mr. Epstein faces additional potential criminal liability and has a right to assert his Fifth Amendment privilege against self-incrimination. But the case law is absolutely clear he cannot come to this Court, sue¶
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and continue to assert his Fifth Amendment right as to matters that are relevant and material to the claims that he is attempting to prosecute. For, for all of those reasons, and if the applicability of the sword/shield doctrine is in any way challenged, I'll address that in my response. I don't know how it can be. But for all of those reasons this is a complaint, an amended complaint, Ntal which can, should and finally must be released ust be dismissed. Thank you, Your Honor.¶
THE COURT: Just one second. me read something here.¶
MR. SCAROLA: The motah dismiss reaches those arguments through the incorporation of all of the arguments in the summary judgmen¶
THE COI,VCoff must be some kind of psychic.¶
MR. SCANA4 I anticipated that is where the Court was going. The motion to dismiss, Your Honor, expressly incorporates the arguments that were made during the summary judgment hearing. And, clearly, one of the principal arguments that was made in the summary judgment hearing was an argument with regard to the sword/shield doctrine. I apologize for having intruded upon your thoughts.¶
THE COURT: Go ahead.¶
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behalf of 'Jeffrey Epstein. And let me back you up as to where we are and why we are. When we came into this lawsuit there was the original complaint, which Mr. Scarola talked about and Your Honor was allowing us to move forward with discovery before we amended the complaint, which from day one we said we will be amending the complaint to plead the cause of action that we felt was appropriate. We tried to go down that angle but plaintiffs -- I mean, excuse me, the defendants asserted privilege to pretty much each and every document which we will ever be able to get our hands on. We did get some limited privilege logs, which will come up in part of my argument, which is talks about why the frivolity of this motion to dismiss. If they want to move for a motion for summary judgment on down the line if they have the facts after we get the document, that's a horse of a different color.¶
But you asked us to -- first, let's take the discovery. Unfortunately between Mr. Rothstein not being able to be deposed, which we, of course need to talk to Mr. Rothstein about what Mr. ' involvement was, and their blanket assertion of privilege --¶
THE COURT: Let me back up. I don't -- I directed you to do discovery. I think I questioned why there was never a motion to dismiss to the original complaint and I said but this is the complaint we have to¶
1 deal with. And I can't tell from reading this thing what
2 in the world the cause of action is and it created a lot of
3 problems in terms of what the scope of discovery was.
4 Without knowing what you are suing for it's very difficult
5 to figure out the scope of discovery and that's why I
6 directed Mr. Ackerman to file an amended complaint so we
7 would be able to focus in on what is discoverable, what
8 isn't, what the cause of action is and that sort of thing.¶
9 MR. KNIGHT: Correct. And then we went forward
10 with what we had to date, which is a reasonable basis for
11 abuse of process claim which has been made. The complaint
12 on its four corners meets all the standards which are
13 required. And these are the cases that are already cited
14 in our briefing and the response, is the Donna Della case,
15 which is the 4th DCA case out of 1987, and goes through the
16 various factors, which leads to what I must give you, which
17 is a little bit of background so that you have it.¶
18 Mr. Epstein came over to the Rothstein firm with three
19 cases. Excuse me. Mr. [REDACTED]. Mr. [REDACTED] came over to
20 the Rothstein firm with three of these files. After he got
21 to the Rothstein firm Mr. Rothstein, Mr. [REDACTED], and
22 others used the cases to pump up the Ponzi scheme. The
23 documents that we need and the privilege logs --¶
24 MR. SCAROLA: Excuse me, Your Honor, I'm sorry.¶
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MR. SCAROLA: It is not alleged. And I cannot allow counsel to make those kinds of statements in open court in the presence of the press and leave them unchallenged. That's exactly what has repeatedly gone on in this case to besmirch Mr. ' reputation.¶
THE COURT: Let me stop you. What I'm concerned about with this complaint, okay, and what concerns me is that there are allegations that the defendants did this, the defendants did this without specifying ho id what to whom and why. It seems to me if you ing to sue Mr. or anyone else, for that MAt er, you need to be specific as to what he did or what you accuse him of before I -- I dismiss routinely complaints like this, which generically say the defendant did something without specifying who did what to whom and why. Because it does not spell out what your claims are I don't know what Mr. Rothstein did. What Mr. did. Or -- and you also say and others. Who? I don't know who they are.¶
And the other problem I have with it, aside from, I think there are some other issues, but your prayer for damages is specific as to some things but also has that, that, that, phrase that, that we all, you know, perk up our ears on, including but not limited to, which leads me to believe there is something else there that you're claiming in terms of damages, which is not, in fact, spelled out in¶
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the complaint. And if there are, in fact, special damages, I think they have to be pled, as compared to general damages. So I don't know whether you're asking for and it makes a big difference, ultimately, what, what -- if we get to the point of the discovery issue -- what the defendants can get from the plaintiff and vice-versa. I mean, i£ you're claiming damage to reputation, lost profit, I don't know what it is you're claiming. I don't know what including but not limited to means, quite l::'1y.¶
: MR. KNIGHT: Your Honor, le;<, reak these down.
¶
THE COURT: Okay.¶
MR. KNIGHT: You brought up the subject early on about lumping the defendan together and there was an early paragraph which Scarola went thro h, s going through allegations relative to Mr. an 'f'it needs to be divided out relative to Rothstein and, we will do so as it relates to damages. The law under abusive process is even nominal damages are enough to survive for a cause of -- The Paragraph 29, which Mr.¶
THE COURT: Don't misunderstand, Counsel, I don't disagree with that proposition that you allege damages that you claim are a result of this. What I'm concerned about is you have thrown in the kitchen sink in that, which is included not limited, does that mean you're claiming other damages or not claiming other damages? I don't know what¶
2 3 4 5 6 7 8 9 10 11 MR. KNIGHT: At this time we're claiming the three areas of specified damages which we went into but the reason that catch-all is in there it goes back to this whole issue relative to the documents that we have been unable to receive. We believe that there will be other damages that maybe would be asserted at that time.. If Your Honor is saying what he would rather have us do is once we get the documents, amend again, I fully understand. We can do so. But at the same time we don't want to be precluded from being able to move forward with our cause of action.¶
12 13 14 15 16 17 18 19 20 21 22 23 The abuse of process cause of action is spelled out in all four corners under the Della Donna decision and, also, the SCI Funeral comment levant to it, which have been provided in the e Iii J&iefings. Here at the motion to dismiss stage that :-%e) where we, that's what the Court needs to look at, as we have discussed. The areas relative to litigation privilege, which Mr. Scarola went at length into, deals with tortious interference causes of action and do not deal with abuse of process. It would be nonsensical for abuse of process to have a privilege because, therefore, you will never be able to bring a cause of action for abuse of process.¶
24 25 THE COURT: Let me disagree with you. I think that the litigation privilege would go to any process¶
1 2 3 4 5 6 7 8 served in the litigation that's relevant to the litigation. It doesn't give you the right to go out and subpoena the president of the United States in a case just to get, for some reason, unrelated to the purposes of the litigation. So, I mean, there is, I read these cases. Unless this has changed the law. At least, it allows abuse of process in civil litigation if, in fact, the processes are not for a legitimate purpose.¶
9 MR. KNIGHT: If the unrelated areas are --¶
10 11 THE COURT: His point was how can these be illegitimate, I think is what his point was.¶
12 13 MR. KNIGHT: If that i)point l but what I was taking he was using the caf tortious interference.¶
14 15 16 17 18 19 20 21 THE COUR don't think it matters what C tort it is. I thi k l itigation privilege applies whether it's libel, e'ander, tortious interference, you know, abuse of process, malicious prosecution, all of those there is a litigation privilege associated with that. And it's a natural privilege. That's how I understand the law. I may be misquoting it but that's what I understood the law is.¶
22 23 24 25 MR. KNIGHT: Understood. And the allegations which are in Paragraph 29 go into some of those areas which are outside, including Mr. ' own deposition. I mean, in his lawsuit, his clients were never on these.¶
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 airplanes yet they went forward and took the depositions of these pilots, et cetera, on the airplane causing excess fees. And really what this was being used for is to be able to gain information which could be used in the underlying promotion in the Rothstein cases. And that's why I brought it up earlier when I was interrupted by Mr. Scarola. It is relevant to what we're talking about today. This is a matter where Mr. ' deposition said I had very little contact with Mr. Rothstein. But at the same time we learn once we get to the privilege log and also the only time he dealt with Mr. Jenny was when Mr. Jenny, who is the investigator approached him, that they are claiming privilege related to, we counted it up, dealing with eighteen to twenty attorneys, nine paralegals, plus investigators.¶
16 17 18 MR. SCAROLA: Excuse me, Your Honor, I thought we were arguing the motion to dismiss and not the privilege issue.¶
19 20 21 22 23 24 25 MR. ACKERMAN: I am. But Your Honor's specific question -- I would ask Mr. Scarola to hold his arguments -- but Your Honor's specific question dealt with what are these areas which are outside of the tort or whatever is being sued on. And if those are being done for some purpose other than the underlying litigation, which were the L.M. and the Jane Doe and E.M. cases here, then¶
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 that is abuse of process. This is at the point of allegations without us being able to get discovery. The allegations we have put into Paragraph 29 in specificity, especially, when you get into Paragraph Four under, under 29, which deals with Mr. going to the Court relative to what should be something relating to the three lawsuits that he has, when what it really is undermine the non-prosecution agreement. Why is that relevant to abuse of process? Well, all that is being used for is to find a way to ramp up our client relative to other worries, which are unrelated to the prosecution of those individual victim cases so that he ends up having to be in a situation where he has to pay exorbitant dollars, which otherwise would multiply what the amount of the actual value of those underlying cases otherwise would be. The complaint itself goes through all that is required under Della Donna.¶
17 18 THE COURT: I presume in those underlying cases there were claims of punitive damages; is that correct.¶
19 20 MR. KNIGHT: There are claims of punitive damages, correct.¶
21 THE COURT: Okay.¶
22 23 24 25 MR. KNIGHT: By the same thing, even looking into that, the efforts to freeze assets, things like that. There was no indication at any point that Mr. Epstein would be unable to cover whatever the compensatory damages and,¶
1 2 3 4 5 6 7 8 9 10 if punitive damages were ever to be allowed, any type of punitive award. All of this was done to ramp up these cases outside of these three, which were the ones that Mr. Rothstein, and as we get through discovery, we believe Mr. were using to sell to the various investors to ramp up the Ponzi scheme. They are tied together. They are in the same firm. These are the lawsuits that were used when the various investors came into the office with Mr. Rothstein. Mr. is claiming, I lieve, that I had no idea that this was going on wit lawsuits.¶
11 12 13 14 Although, we know in the privilege ey're claiming that he's dealing with the eighteen to twenty attorneys, the nine paralegals and thArrestigators. They just don't add up both ways.¶
15 16 17 18 19 20 21 22 23 24 25 But relative we're here on today, the motion to dismiss, this a rtfled complaint does plead a cause of action under Florida law. If Your Honor wants us to go back and plead with more specificity relative to where we put in defendants, we will do so. I would suggest it would be better for us to be able to get the discovery. And the reason we have so many people here is we have Mr. Weinberg here to represent -- to talk about privilege issues. Mr. Ackerman to talk about various issues that may come up, including sword and shield. Get to those so that we don't constantly have to be coming back to the Court.¶
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This complaint does plead a cause of action under Florida law and the motion to dismiss should be denied. Thank you.¶
THE COURT: Speak to the fact that some of these things I, I mean, I understand how, even though they ask you, the question in and of itself may not be abuse of process. The actual subpoenaing somebody and then asking of the questions may be abuse of process, at least, in my view. If, in fact, the only purpose of doing that is to, like you have alleged here, to somehow or another for illegal purposes or for improper purposes. But there are some of these things that you've alleged here I don't know how ever could be abuse of process. Like notifying somebody that they intend to do something, how could that possibly be abuse of process? Or saying -- or how can investigation be an abuse of process, or surveillance be an abuse of process. That's not using the process of the Court for anything. Maybe I'm missing something.¶
Or what does this mean, the representative of the¶
trustee for RRA's bankruptcy stated there are thousands of¶
documents involving RRA employees and government officials¶
including state and federal law enforcement authorities¶
relating to Epstein. What does that have to do with abuse¶
of process?¶
MR. KNIGHT: That one --¶
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MR. KNIGHT: Yes, sir.¶
THE COURT: Why is making an allegation in a well, I guess that could -- I can see that. Attempting to discover information. You know, it's like -- what I'm getting at do you have any case law that says abuse of process can be not actually issuing process but thinking about it or threatening it or something like that?¶
MR. KNIGHT: The Della Donna case doesn't go into investigation. The privilege issue really comes up as an affirmative defense, Your Honor, ad4sthat's what the cases say also.¶
THE COURT: I'm fi ASi about privilege.¶
MR. KNIGHT: relates to these allegations, though, if some of h n be taken apart to say, well, this one could be (§: nAected back to the process, i.e. the pilots being deposed, et cetera, and the other one is more flavor for the complaint. But to be able to spell out this complaint so the Court can understand where we're eventually going, because we haven't had these documents, I think putting that into the pleadings is the correct thing to do so that the Court can understand the complexity of this and what's involved and why we need to find out more so that we can get into the specifics. Clearly, we have enough for abuse of process. Whether or not some of these¶
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individual paragraphs would not survive or individual sub-part As or Bs, you may be correct. But I think the Court needs that in the amended complaint to get the overall flavor of what the abuse of process cause of action is.¶
THE COURT: That may be. But what you've, you've alleged these as specific acts of abuse, though. Su don't 14 Y allege this as some kind of background or cont something like that.¶
MR. KNIGHT: And we did -- ege it but I understand Your Honor's point sayi w is that connected to the process because they did go foil', and actually --¶
THE COURT: It says¶
MR. KNIGHT: ey didn't serve the celebrities they just threate d- erve the celebrities.¶
THE COUR 1( 0) I'm just reading what you said. This is not my words. It says the defendants made illegal, improper and perverted use of the process by utilizing unrea onable discoveries, unnecessary discovery, or thre ening to take discovery and then you list. And some of these it seems to me are not actionable as a matter of law, the way you've pled it anyway. I mean, maybe --¶
MR. KNIGHT: I think Your Honor's point is that it should have been more to the general allegations of the preamble rather than the specifics.¶
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THE COURT: I'm also concerned about the fact that you've lumped all the defendants together in one - two defendants, I guess, together without specifying which did which. And I understand it's kind of a chicken before the egg, egg before the chicken.¶
MR. KNIGHT: Chicken or egg or cart before the horse, Your Honor, it's all the same thing. When we look at these privilege logs we see the involvement of so many people and the Court rightfully said let's try to amend the complaint. Now, we did the best we can with the facts we have but they are still playing this we're not going to give you anything defense, which puts us, you know, in a position where certainly they should not be able to take that as an advantageous Rvition and now say, II, let's go ahead and dismiss -h. plaint and we'll still hide all of these documents (firtgm you we haven't given. Certainly, these documente, many of them are waived. Many of them are privileged on their face, et cetera. We want to know the who, the how, the when. And then there could be additional abuse of process allegations in there with more specificity but at it relates to this complaint itself, it has enough of the four corners to survive the motion to dismiss.¶
THE COURT: Anything further?¶
MR. SCAROLA: Yes, sir, Your Honor. What we have heard is, indeed, a cart before the horse argument. We¶
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 filed this defective complaint because we haven't gotten the discovery that will enable us to file an appropriate complaint. You need to have the basis to sue first. And you need to state a viable cause of action first. You don't excuse obvious defects in your pleading on the basis that you haven't yet gotten the discovery that you hope is going to provide a basis for some cause of action and I don't know what it is. What Echevarria says is, quote, in the Levin case the 11th Circuit certified a question to this Court asking whether Florida's litigation privilege protects the acts of certifying to a trial Court an intent to call opposing counsel as a witness at trial in order to obtain counsel's disqualification. And later failing to subpoena and call that person as a witness from a claim of tortious interference with a business relationship. Answering in the affirmative we extended the litigation privilege to all torts finding that absolute immunity must be afforded to any act occurring during the course of the judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior. And here's the qualifications that Your Honor referenced earlier. So long as the act has some relation to the proceeding.¶
24 25 There is no allegation anywhere in this amended complaint that any of these acts had no relation to the¶
1 2 pending claims against Mr. Epstein, which most clearly included claims for punitive damages.¶
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 And the fact that airplane pilots are not asked a single question about the particular victim in the cases being prosecuted doesn't mean that what was going on on those airplanes on a routine basis that formed part of a pattern of criminal activity on Mr. Epstein's part was not relevant and material to the punitive damage claims that were being investigated and prosecuted legitimately by Mr. The fact that he took an aggressive, thorough approach on behalf of his clients. And took discovery reasonably calculated to lead to, admissible evidence. And there is no allegation that any of this discovery was not reasonably calculated to lead to admissible evidence, those allegations do not appear without specifically alleging the exception recognized by the Florida Supreme Court, this complaint fails. And it is no excuse to say, maybe I'm going to find some evidence somewhere that allows me to assert some legitimate cause of action, if you allow me to proceed with discovery on a case -- on a pleading that does not state a legitimate cause of action.¶
22 23 24 25 We start hearing again about the theory of damage that no longer appears in this complaint. That is Mr. Epstein had to pay more to settle these cases than he otherwise would have had to pay to settle these cases if Mr.¶
1 2 3 4 5 weren't out there putting all of this pressure on him. Well, that's, that's Mr. ' job to maximize the value of his client's claims by putting as much legitimate pressure on the defendant as he possibly could and he, obviously, did an extremely effective job.¶
6 7 8 9 10 11 12 So this complaint clearly needs to be dismissed on all of those grounds that we have asserted. And one thing that is not addressed at all in the argument that we just heard is the sword/shield problem that they have. Now, this is an amended complaint so we know the sword/shield issue exists because we've already deposed the defendant. Excuse me. We've already deposed the plaintiff.¶
13 14 15 16 17 18 19 20 THE COURT: Let me tell you, Mr. Scarola, I'm not going to dismiss the complaint based upon that at this stage. The reason, very simply, is that we can't really know what the sword/shield doctrine applies to until I know what the lawsuit is about. And I don't know what the lawsuit is clearly about at this point because there's certain things, obviously, that he can object to and I'm not making that determination at this point in time.¶
21 22 23 24 25 I am going to dismiss the complaint with leave to amend, however. I find some serious problems with the complaint. Specifically, number one, that you have lumped together the defendants and it's not, it's not, in my view not a, not a basis to make vague allegations that are¶
1 2 nonspecific to a particular defendant because you haven't gotten some privileged documents yet.¶
3 4 5 6 7 8 Because you got to come out, if you think this gentleman, or anybody, has made, committed a tort, then you have to allege it and then you get to the discovery that you want. The abuses of process, if they occurred in this case, occurred. They're not privilege. They occurred as part of the lawsuit.¶
9 10 11 12 13 14 15 16 17 18 19 20 Now, Mr. ' involvement or lack of involvement in some alleged Ponzi -- not alleged Ponzi scheme, I guess it's a fact it's .a Ponzi scheme by Mr. Rothstein, that may be subject to all of these /14 vilege objections and 4 how -- whether he was involved)* not involved and what he did or didn't know and all of that kind of stuff. But the process was in the lawsuits. You have to know at this point in time what he did or didn't do that was an abuse of process. I don't know how you can't know at this point in time because it either, it was either calculated to do something with that litigation or it was abuse for that litigation.¶
21 22 MR. KNIGHT: Your Honor, we will re-allege with more specificity. Thank you.¶
23 24 25 THE COURT: How much time do you need? And it's been a problem with this case from day one, okay. And I know I've mentioned it several times before without¶
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getting, knowing what it is that we're litigating, it's very difficult to make decisions on all of these other issues you guys are talking about, including sword and shield, including privilege, including whether or not, you know, Mr. has to answer questions or Mr. Epstein has to answer questions, unless we know exactly what, number one, the claims are against -- what the abuses are. And let me back up. Some of these things the way you've alleged them, at least in my view, are not a' buse of process as a matter of law. The mere threate f doing something without doing it, I don' p ess you get a case that says that's abuse of process, I don't see how it is.¶
The others, I think, could be if they're alleged properly. If you're taking a deposition and asking questions in that deposition for the sole purpose of what you have alleged here or for the purpose unrelated to actually prosecuting the litigation, then I think that can be abuse of process.¶
But the mere notifying somebody, I have trouble understanding how Paragraph Five is an abuse of process. have trouble understanding attempting to conduct discovery. Or, I mean, some of these I just don't see how actionable. So I think you need to, to plead it more specifically.¶
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but not limited to damages doesn't cut it. If you got special damages, I think you have to plead them. Now, you can always amend, if you find out there are other damages down the line that you have not claimed.¶
But see, one of the issues in this case is going to be what your damage claims are may have something to do with what discovery is or is not calculated to lead to Al* admissible evidence in this case.¶
So I'm granting the motion with leave . How much time do you need?¶
MR. KNIGHT: Thirty days r onor.¶
MR. SCAROLA: We would object to thirty days, Your Honor. This case has been going on for a very long. time. This is now a single count complaint. Ten days ought to be more than adequate to get this filed.¶
THE COURT: Well, I'm going to go ahead and give you thirty days to amend. Okay. The next issue, I guess, on the --¶
MR. ACKERMAN: Your Honor, I've got some blank orders on all of the motions. Do you want --¶
THE COURT: Well, I'm going to ask you guys to fill them out for me. It would make it easier for me. Okay.¶
MR. ACKERMAN: Okay.¶
2 MR. SCAROLA: Yes, sir.¶
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Let me, I don't want to take your time, Mr. Scarola, and let me tell you what I'm going to do on that. I'm going to deny the motion. I already heard an argument on it. I already read some of the materials And here's the reason I'm denying the motion at this n it's without prejudice. The rule, and I think/rPly gr Rule 1.190. Is that it? Was -- yeah. 1.190, which is the rule on amended and supplemental pleadings, was amended in two thousand, I believe, 2003 pursuant to Florida Statute 768.72 to give guidance as to how you go about doing this. And the footnotes to the Civil Rules of Procedure -- and this is a problem we had before this rule came out -- cites to, it says that subsection is amended to comply with the case of Beverly, Beverly Health And Rehabilitation Services, Inc. versus Meeks. And I had been applying this case before they actually incorporated it into the rules, but that case specifically said, it set up a procedure, at least, in the Third District for motions for punitive damages. And I'll quote from paragraph -- I don't know what page it is here. But, basically, says this -- and I've been applying this in the past, as well. Accordingly, it is and shall be the practice of this Court to require a written summary of the evidentiary proffer with appropriate¶
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page and line citations, deposition testimony, affidavits need to be filed and served in advance of the hearing so the defendant will have a reasonable opportunity. The motion doesn't do that.¶
MR. SCAROLA: It does, sir, respectfully.¶
THE COURT: I pulled it. The one sitting here doesn't have it.¶
MR. SCAROLA: May I call the Court's attention to the very first paragraph of the motion that says the counter-plaintiff, J. moves this honorable Court for an entry of order granting him leave to assert a claim for punitive damages against the counter-defendant, Jeffrey Epstein. And in support thereof would show that the record evidence presented to the Court in support of ' motion for summary judgment satisfies every statutory prerequisite for the assertion of a claim for punitive damages. That summary judgment motion, if Your Honor recalls, includes an extremely detailed recitation of record evidence and, specifically, cites to page and line numbers in supporting depositions, to specific paragraphs in supporting affidavits, and, clearly, by virtue of what is presented to the Court and incorporated by reference every conceivable requisite for a proffer is included in that incorporated summary judgment motion.¶
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that summary judgment motion back again and change the title on the summary judgment motion to say now it's a proffer.¶
THE COURT: I want you to make a motion pursuant to what I have just said. I don't want any incorporated things, you know. The same thing with your motion to dismiss. You know, when you incorporate somethin Arlibr that doesn't work for me. I need it in front d e I need the page, line so I can read it as a¶
MR. SCAROLA: Do you really that box of material back again?¶
Cati) THE COURT: I got th I r I saved the box. I knew this was coming. I g . I need your motion. I need it to be specifi motion dealt with the evidence for p i'Lve ause your summary judgment other stuff, too, not just with damages. Okay. And the other thing was that n'the summary judgment motion, if I recall right, one of the reasons I denied the motion was discovery not being completed at this point, if I recall.¶
MR. SCAROLA: I think that was the only reason that Your Honor denied the summary judgment motion, which, obviously, would not be any legitimate opposition to a motion to assert a claim for punitive damages.¶
THE COURT: Again, Mr. Scarola, we're going to do it my way.¶
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THE COURT: I want you to file your motion, set it for hearing and I'll look at it. And then it goes on to say that what happens is the other side, okay, this has to be done, at least thirty days, at least, this rule says thirty days before the motion, before the hearing. To give the opportunity for the file something specifically in opposition, and that way I can compare and contrast. motion is set for defendatif* pag sine That4-4e way I like to do it. And it makes -- it's easy when you have an alcohol related case or something like that. It's very complex in these cases and, you know, I just do not have the ability to go back and do it. So I want you to do * Aqr, that.¶
MR. SCARC:,) understand the Court's direction.¶
THE COUR So that's withoutprejudice P and file your motion. Okay. Now, having said all of that, where are we in terms of the trustee and bankruptcy and Judge Carney and where are you at? Because I read his order and his order seems to say I agree with Judge has to control the discovery in this case but it runs the risk of having conflicting orders. And I kind of agree with that, as well. So where are we at in terms of discovery with the trustee?¶
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THE COURT: Okay.¶
MR. ACKERMAN: Okay. Your Honor, when this matter started, and I know you've heard some of it but because it's been awhile, I would like a little latitude.¶
THE COURT: Sure. We got the day so I'm here.¶
MR. ACKERMAN: Initially when this case began the prior law firm representing Mr. Epstein issued a subpoena to the bankruptcy trustee that was in possession of records that we believe were related to this lawsuit. Okay. That met -- were relevant to the claims that had been pled. At that time Mr. Scarola did not object to the issuance of the subpoena and I have that here. Okay. When the subpoena was served on the bankruptcy trustee we then had four or five or six motions filed on the grounds of privilege. And since the bankruptcy trustee controlled and was directing those matters before Judge Ray a special was agreed by the party to be appointed.¶
Now, also at that time -- and this is going to come up in answer to one of these other motions -- one of the other creditors, razorback, had also subpoenaed substantially the same amount of documents. Substantially subpoenaed the same documents that we had subpoenaed. And it was their understanding that they were going to be participating in this proceeding with Judge Carney. Now, each time we got¶
1 2 3 up to a deadline there was an order, order given to the firm and Mr. to prepare a privilege log. They were given numerous extensions.¶
4 5 6 THE COURT: Just so I understand. The firm is now where these cases are at or went to after the Rothstein --¶
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 MR. ACKERMAN: That's correct. And that's where Mr. is now. And they had lodged only privilege objections as to attorney-client and work-product materials as to this subpoena. When the special was appointed we began a series of meetings and hearings to try and deal with these special issues. And what that ultimately culminated in was an agreement, a confidentiality agreement, where Mr. Scarola's clients would produce, approximately, five boxes of documents that were designated work-product, attorney's eyes only, which meant only the lawyers for Mr. Epstein could look at them. And what they designated to be irrelevant documents, which they believed had nothing to do with the case, but felt that it was easier to produce them and put them under a confidentiality order so, and those were allowed to be shown to our client.¶
22 23 24 Now, if any of the parties believed that any of those documents were relevant or appropriate to be used in this proceeding, they were to take that to the special¶
2 3 4 5 6 7 MR. ACKERMAN: This case, your case. Okay. And they were to be gone to the special . Now, about that time we were arguing the motion for summary judgment. Counsel for had argued to Judge Ray that, wait, until the summary judgment motion is argued, defer ruling. All of those were denied.¶
8 9 10 11 12 At one point they had asked you to pull back the subpoena that had been issued on these matters and you denied that. So then they prepared a privilege log that logs. i was, clearly it's in our binderM here is two privilege 4ssr¶
13 A THE COURT: Fortunately, I looked at it.¶
14 15 16 17 18 19 20 21 22 23 MR. ACKERMAN: The first one, clearly, doesn't meet any requirements regarding the privilege log so we filed motions directed to that. The special ruled that you have to, at least, identify the people on it. We felt that the log was also inadequate, okay, for other reasons. And so the special ordered a list of the people, a list prepared, which is here, that identified who the people were. Okay. And in the meantime Razorback went ahead and filed a motion before Judge Ray to participate in this special hearing.¶
24 25 Then we came in court on a hearing filed by a non-party who, Spencer Kuvin, had argued that since he was¶
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 identified on the privilege log as receiving some of these documents, he was going to assert a joint prosecution, joint defense type of privilege. Now, when we were at that hearing, at that point in time the special had generated his report. The special had set up a time when we were going to go through, he was going to go through the documents with everybody in the room and, at least, eliminate the ones that are obviously not privilege, lChw, which you can do by looking at this log. mean, one can do, okay, by obviously looking at it. then we were going to break them down into whai e related to what x privileges because there was a different standard of proof that related to the different privilege. For example, it's the burden of the plainti f to establish the joint defense c* agreement and we w o ng to do that.¶
16 17 18 19 20 21 22 Now, as that'a2occurring, Mr. Kuvin came in and argued his position and the Court was stating its position that you were in charge of the privileges, which we agreed. And that you were in charge of discovery, okay. And you put a stay on any discovery to the special and it effectively shut down the special . I mean, you put a stay on any subpoenas to the bankruptcy trustee.¶
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THE COURT: From this Court?¶
MR. ACKERMAN: From this Court.¶
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MR. ACKERMAN: No. You did from subpoenas issued from this Court.¶
THE COURT: It could have only been your subpoenas or Mr. Scarola's subpoenas.¶
MR. ACKERMAN: Correct.¶
THE COURT: Somebody read my order otherwise. They can continue with any other --¶
MR. ACKERMAN: No, no, I'm not sayin -¶
THE COURT: Okay. I'm sorry.¶
MR. ACKERMAN: If I said that, what I'm trying to say your stay applied to subpoenas ued from this Court to the bankruptcy trustee.¶
THE COURT: Righ¶
MR. ACKERMAN: . And at that point in time we were at the poi b. e where you said we were in the midst of the heari(r9s) that dealt with the amended complaint and that you needed to have the complaint done. And we had previously told you that we had, we believed we had a good faith basis for this complaint. We could demonstrate that Rothstein was definitely guilty of a crime. We could demonstrate definitely that the Epstein case files were shown to investors for the purpose of getting money that ultimately came in to the Rothstein firm. We can show that Mr. Rothstein, and some of these are in the complaint, I'm not re-arguing that, but, we could show at that time that¶
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Mr. Rothstein made specific representations to these investors about what he could do. And then we can show that Mr. carried those out. And that Mr. testified in his deposition that it was a very limited number of people involved. And then what, in fact, occurred was that Mr. Rothstein was meeting with Mr. and the rest of the firm on this and they were having meetings about it, thus, providing the link to the theory of our cause of action as the abuse of process. And the theory of abuse of process related to a misuse of the judicial system. The use of these proceedings for some other purpose, that purpose to further this Ponzi scheme. It meant going after his friends individually. Putting - taking steps and takin ons that had nothing to do with those, those vict¶
Now, at that i )nt in time we had subpoenaed the communications between Rothstein and the various investors, which is the first subpoena. And the second subpoena related to the law enforcement subpoenas. Because at that point in time, for one respect, Mr. has subpoenaed and has requested, we're going to get to it later, records between Mr. Epstein and the U.S. Attorney's Office. He has used those records as part of a summary judgment proceeding. We believe in the records that have been produced to us that they specifically, particularly when¶
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you look at some of the items in the privilege log, that they specifically undertook the course of action to further this Ponzi scheme to interfere with a non-prosecution agreement that had already been reached with the government. Okay.¶
It's not a tortious interference claim. It's a claim where they were abusing the Court system by using discovery mechanisms to bring about a breach or get the government to come to regress or retreat from the agreement it had entered into it after Mr. Epstein had pled guilty. Had served his time. Was on probation and already had substantial reliance and change of position on agreement. And that was done, we believe, to show investors what they were doing to advance this Ponzi scheme. So when we sent a letter -- a subpoena, which is why that is in the pleading, because it's evidence relating to the interference. This was a CVR case. And that case was filed by Mr. in 2009, okay. At the time his cases were pending with Mr. Epstein. There is a long lapse of what occurred, okay, until these cases get settled. And then he files a pleading in the federal court and he had represented in the underlying case that the documents he wanted regarding the law enforcement documents were necessary because they might lead to other discoverable evidence in that case. And then in the CVR case, which is pending before Judge Marra now,¶
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he said I finally got the documents I wanted for the CVR case. So he, in fact, misrepresented to a magistrate why he wanted those documents.¶
So then there is an order entered by the magistrate that says any of the documents that were produced -- and I have a copy of it here -- any of the documents that were produced pursuant to that order cannot be used 3.11 tpy proceeding absent a ruling by the Court on tho ssues. Now, some of those documents have already en ed.¶
THE COURT: The Court meani¶
MR. ACKERMAN: T is At g agistrate ) or judge Nt for which the document ought to be used, okay. And those are some of the ents that are in the summary judgment binders. Okay. And those were done for the purpose of being able to bring to make their summary judgme argument.¶
MR. ACKERMAN: You.¶
THE COURT: Okay.¶
when we got to that stage in April, based on the Court's ruling we -- the special proceeding stopped. We indicated to the Court at that time that we believed that on its face some of these matters in the privilege log the Court can look at and rule on and determine that they were not privilege and they are not waived and we were going to request the Court to do that. As far as Judge Ray¶
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is concerned, the Court, you, have the ability to determine ti these matters yourself in terms of how it affects your case. He is not going to be doing anything, and he stated that on the record in one of the proceedings in the bankruptcy court, that he's not going to be making an in camera review. He's going to allow you to handle that process, okay. I mean, you as opposed to him rul' ".the privilege issue, is what I'm trying to say. rTh¶
Now, that's pretty much where we are in terms of --¶
THE COURT: Let me ask you a question before you proceed. If there are other parties se hese documents for which there was a special appointed, why did my order, which merely stayed my subpoenas, stop production of document the trustee if other people are seeking these documen r reasons unrelated to this lawsuit? I.¶
MR. ACKERMAN: Here's what happened. Your order stopped it for us.¶
THE COURT: I understand that.¶
MR. ACKERMAN: Okay. And I have a copy of the pleadings, if you need to see them. But Razorback --¶
THE COURT: I read the order. I know what it says.¶
MR. ACKERMAN: Razorback went in there and said we want to do a 2004 exam of Rothstein and we want these¶
1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 records. And the records are substantially the same as the ones we wanted. They filed a motion to clarify this in front of Judge Ray, okay. And this is where one of the issues came up that he was not going to be ruling on stuff that related to you. And I have in the binder there the transcript of the hearing where Mr. Scarola and his clients agreed to produce the documents that they are now claiming privilege on and have produced those documents to Razorback. So the documents that we're seeking here for which they claim privilege, for which we have a confidentiality agreement, they have produced voluntarily to a third-party. We believe there's a waiver. We believe that invalidates the confidentiality agreement. And basically what happens is we're here arguing untold privilege issues when the very documents that we're seeking they have voluntarily turned over to a third-party without any issues of privilege. Without any issues of confidentiality. And that's what happened to them. Those documents were turned over and that's why that transcript of that proceeding is in there because we're prepared to argue that many of the documents that we have requested for which privilege claims have been brought are now waived. And I've also asked to use some of the documents, to use confidential documents because I believe it supports our cause of action and I believe that the confidentiality¶
2 So the answer to your --¶
3 4 5 6 7 8 9 10 THE COURT: That makes it as clear as mud. I know -- just understand my frustration. It's very complicated when you, you know, you're telling me all of this and it's not really clear to me. Let me ask a simple question. The privilege here, the attorney-client privilege belonged to the clients, are they involved in this at all? I mean, is anybody protecting the rights of these women that were --¶
11 12 13 14 MR. ACKERMAN: Your Mono firmer and Mr. have asserted attorney-client privilege on behalf of those clients but many of these privileges that they have asserted, are work-product.¶
15 THE COURT: Okay.¶
16 17 MR. ACKERMAN: Or there is one with confidential source so we have no idea.¶
18 19 20 21 THE COURT: Just so I'm understanding, are there two separate sets of documents, one is in the hands of the new law firm and the ones that are in the hands of the trustee and bankruptcy from the old Rothstein firm?¶
22 MR. ACKERMAN: Yes and no.¶
23 THE COURT: Yes and no. Okay. Good.¶
24 25 MR. ACKERMAN: The first set of documents, okay, which were the subject of the first subpoena and our first¶
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request to produce, the trustee turned over those documents responsive to that to the special and to the new law firm. The new law firm has also turned those documents over to Razorback.¶
The second set of documents, which we're here on, relate to our subpoena to the trustee for law enforcement. Basically, communications between law enforcement agencies and the RRA law firm. Those documents -- and those were the basis of a specific request identifying people -- and those documents have been gathered by the trustee on a disc ready to be produced. And they have not been turned over to anyone because the Court's stay order that said any subpoena directed to the trustee is stayed. So the trustee has not turned over those documents. Those are in the possession of the trustee.¶
THE COURT: Okay. So there are -- let me - there are two sets of documents then. The law enforcement documen < ,NSighich are in the possession of the special mast ti.) the trustee proceeding, right?¶
MR. ACKERMAN: The law enforcement documents are just in the possession of the trustee.¶
THE COURT: Trustee.¶
MR. ACKERMAN: Not the special¶
THE COURT: They're in possession of the trustee. The other documents, which were the old Rothstein firm¶
1 2 files or materials, as well as anything for the new firm are all, has all of those documents?¶
3 4 MR. ACKERMAN: Those were documents that came, that the trustee picked up --¶
5 MR. SCAROLA: Yes.¶
6 MR. ACKERMAN: Yes.¶
7 8 9 THE COURT: And they are in the hands 4.1 n addition, they are in the hands of the special Lma) ter, he a.. has those?¶
10 MR. ACKERMAN: Right.¶
11 THE COURT: Okay. c¶
12 13 14 15 16 17 MR. ACKERMAN: Now, the/'re is a third set of documents, okay. They are called Qtask and the Fortress documents, okay. Those are the softwares that managed the cases within the Rothstein firm. The trustee is still litigating to get *nose documents with Qtask. The Court has =Pal¶
18 19 THE COURT: Who is help me out here. Who is¶
20 21 22 23 24 25 MR. ACKERMAN: Qtask is a company that supplied the software system for private communications and, also, for case management to the Rothstein firm. We have received through exhibits and other depositions in the bankruptcy case, that Rothstein used some of this secure software communications to communicate with the investors¶
C.)¶
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and people in his firm about his Ponzi scheme as related to the Epstein cases.¶
Now, those records were subpoenaed and sought by the bankruptcy trustee from a company named Qtask. That company is owned and controlled by former Rothstein lawyers, Bob Buschel, and others. They have been ordered by the bankruptcy court to produce those records and have failed to do so and now are subject to -- and have been ordered under pain of contempt, including icceration of Ac ) the individuals, to produce those reco They have been assessed punitive fines and attorn eic5 es for not producing them as of --¶
THE COURT: So we have three sets of documents, am I correct now? Okay.¶
MR. ACKERMAN: So that's one of the reasons why in terms -- I understood your question as to the ones we're dealing with now but I need to alert the Court there is another group of documents that would be responsive to our initial subpoena but that the bankruptcy trustee would need to produce when Qtask and the Fortress documents become available.¶
THE COURT: Okay. So we have the Rothstein and documents, the file, whatever, may be in existence. We have a law enforcement file that dealt with Rothstein. And you have the Qtask, I guess, software system.¶
THE COURT: That have not been produced yet but will at some point be in possession of the trustee in bankruptcy.¶
MR. ACKERMAN: Correct.¶
THE COURT: What we're dealing with, at least at this point in time in terms of your production request, deals with the Rothstein/ documents and aw enforcement documents; is that correct?¶
C.)¶
MR. ACKERMAN: Yes.¶
THE COURT: Okay. So whetC>do e start then? That's where I want to -- where do you want to start with this? I mean, one of the problems, again, is that -- let me stop. Start with this. Is it possible that since Judge Carney has already spent, I imagine, countless hours looking at this, that he could do it for me as well as the trustee in bankruptcy?¶
MR. ACKERMAN: The problem we've had, Your Honor, is that we believe that the more economical method to do this would be for you to take a look at the privilege log and determine initially whether they have been waived and some of the motions here are directed to that. And --¶
THE COURT: Maybe I should stop and ask how many documents are we talking about? If we're talking fifty thousand to a hundred thousand --¶
THE COURT: -- there is no way.¶
MR. ACKERMAN: If you look at the special¶
report --¶
THE COURT: I did read. He said like sixteen hundred documents, or.¶
MR. ACKERMAN: Those are sixteen hundre 464nt'e s. 44Ze They are not necessarily documents.¶
THE COURT: That means it could documents per entry or something like¶
MR. ACKERMAN: I'm sorry en hundred documents.¶
MR. SCAROLA: Illy I address the Court?¶
MR. ACKERMAN: nty-eight thousand pages.¶
THE COU175- I'm going to do, I'm going to let him finish, tAle--4 break for lunch. We'll come back and you tell me what your position is, okay.¶
MR. SCAROLA: I would like to take five minutes before lunch because it may keep us from coming after lunc¶
MR. ACKERMAN: I don't know if I can finish. But the point -- I want to answer your question is that the breakdown we're talking about, sixteen hundred documents that are identified on the privilege log. Now, we believe that if you review the privilege log and make rulings¶
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because of either the inadequacy of the logs, because they have failed to comply with the Teague requirements, and we believe if you go through and see that some of the matters clearly aren't privileged on their face, that number will be greatly reduced and then you can do the in camera review. It would also give you an opportunity to understand what we're trying to accomplish and wh trying to plead in this case because then you cou ) eview the documents that we have. One of the re ons ibr want to use --¶
THE COURT: These documeniC 9 in some location?¶
MR. ACKERMAN: Yes, they're on discs.¶
THE COURT: Okay.¶
MR. ACKERMAN. 're on a disc. Okay. You can have hard copies, -so you wish, okay. Either way it can be done. But(ne of the reasons, one of my other motions that I wanted to get directed to goes to this matter because we had this confidentiality agreement where we ag eed to keep them secret. I submitted those documents toxin A7I camera. Those are documents we wanted to start using now in discovery for depositions because part of the issue is we can't --¶
THE COURT: These?¶
MR. ACKERMAN: Those ones.¶
MR. ACKERMAN: Okay. We can't really effectively take discovery -¶
MR. SCAROLA: No objection.¶
THE COURT: I'm sorry?¶
MR. SCAROLA: No objection.¶
THE COURT: Okay.¶
MR. SCAROLA:, 1 don't mean to interrupt but .can save some time.¶
(H;4'¶
THE COURT: Okay. Let him have -ve minutes and cr we'll come back and let you say whatevA u want, 4 Mr. Ackerman, okay. And then come okay. Go ahead, 4ssv¶
MR. SCAROLA: ^hTT h :are specific documents that have been identified b kerman from among those documents that hav bec- on)p, rovided to them pursuant to an agreement that th ecirt - uld like to use. As long as it is expresslyxnderstood that by agreeing to the use of those specif,Seslocuments we have not prejudiced any assertion of privilege with regard to any other documents, we're prepared to allow them to use them. They are worthless. I really don't care whether he uses them or not. I just don't want to impact upon any other privilege argument that we may make by making that concession. I am obliged to make sure that we continue to protect all of our other privileges because we don't have the right to waive¶
2 3 4 5 6 7 8 9 10 11 12 We are still in that same position today as a consequence of the rulings that Your Honor has just made. We can't go any further this afternoon. As much as I would like to, to help to resolve these issues because the same threshold problem exists. We have a relevancy concern that must be addressed before any privilege concern can be addressed. That's our position, sir. So I would like to get it done today. We've got today set aside. I would love to be able to resolve all of these issues. It cannot be done and that's why I suggested that I needed five minutes before lunch, Your Honor. I don't think I took three.¶
13 14 MR. ACKERMAN: I have a response to that but we can do it after lunch. up to you.¶
15 16 17 18 19 20 21 22 23 24 25 THE COT:, go ahead. Actually, that was my concern initiallylSocLse, I mean, from day one in this case, Mr. Ackerman, and I think I articulated this a number of times the problem I had initially with the complaint. know you are not the author of the original complaint, okay, I know that. Was that I couldn't get a handle on what exactly the claims were and what the issues were going to be to determine what was relevant or calculated to lead to admissible evidence in the case. amended complaint, we're getting it we're going to ultimately end up at I think by filing your down to, I think where some point but we still¶
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issue, Your Honor. MR. SCAROLA: Still doesn't resolve the relevance¶
MR. ACKERMAN: I need to respond.¶
haven't gotten to that point. One of the things that really concerns me is the vagueness of the damage claims here because that has to do with some of the discovery, for example, that they can get of you. So, I mean, I guess I can make decisions on whether or not privileges have been waived. If it's been waived, it's been waived.¶
O¶
THE COURT: I understand tha, u I can make a determination -- I'm sorry. Go ah¶
MR. ACKERMAN: I didn't mean to interrupt. I'll let you finish. <4;sy¶
THE COURT: any help I can get.
¶
MR. ACKE kay. There is a two part process with this relevanc st. And the first part, we have argued this back nd forth several times with you and with the special, which is why we had some frustration with that proceeding, when this subpoena went out with the complaint that it was operating under, the first complaint that everyone has been referring to, there was absolutely no objection on relevance filed at that time. And under the rules of procedure that is when it's supposed to be done. We argued relevance. They argued, attempted to bring up relevance. Really did not bring up relevance in¶
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aspect of it. front of Judge Ray. The only motions that were filed in front of Judge Ray related to privilege. Once we got the special we started -- they started arguing relevance again. And one of the hearings in February the special ruled, I'm not going back to relevance. That ship has sailed. You could have objected when this subpoena went out the special ruled. And now we're at the point of doing the privilege stuff. That's t¶
The second aspect of it is that matters here that the Court'shoul is enough n to allow some discovery without the need of another complaint. Because it allowed the process to proceed in some areas. The damages, you know, that hat's not a significant part of this, okay. That' n the part we're looking for and the subpoena we're C king about deals with documents to t mS the trustee and,tK e firm related to the Ponzi scheme.¶
THE COURT: Let me suggest to you, however, that the other concern here has to do with my schedule, my ability to devote time to reviewing documents and privilege logs for things that may ultimately end up not relevant to the lawsuit. Okay. We're talking about thousands and thousands and thousands of documents. I'm not a special getting paid $300 an hour to look at documents. I've got eighteen to two thousand other cases out there.¶
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they're privileged or not. THE COURT: I understand that but'_ then I have to look through ten thousand documents to Ali:It, rmine whether¶
You guys want me to sit down and spend two days looking at documents, it seems to me that I ought to make a determination as to whether they're relevant before I do that but, you know, I understand your position.¶
MR. ACKERMAN: The determination of the relevance is on the request. That's what they're objecting to and they have not -- they've waived the request. You can look at the subpoena.¶
MR. ACKERMAN: I don 34(t hank -- my point earlier was is that when you make¶
THE COURT: think you're understanding what I'm saying. a I saying is it's important to me, because I don't weNt'L spend valuable Court time reviewing documents to determine whether they are privileged or not privileged or whether the privilege has been waived, if those documents are not relevant to this lawsuit. That's my point. Does that make any sense to you? You know, you know, there is a finite amount of time that I have available to do this and I'm going to spend as much time as necessary to get it done. But I would like to be able to, at least, do it in a rational manner rather than just go out and look at documents. And because I would have to¶
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look at the docuMents, it seems to me, unless it's been waived specifically, Mr. Ackerman, or are already, then for me to determine whether they are or are not privileged it requires me to look at them, does it not?¶
MR. ACKERMAN: Yes. But I don't believe that the issue of relevance is part of it.¶
THE COURT: You are not following me, I guess..¶
MR. ACKERMAN: They have claimed. We have sent a subpoena. The subpoena has been responded to based on the .../ ( subpoena. Based on specific certain t relating to the c) subpoena. And the documents you are goi g to be reviewing are work-product relating to the Epstein case.¶
THE COURT: Maybe I'm not making sense and I apologize. You don't understand what I'm asking or what . I'm suggesting. I understand what your position is.¶
MR. ACKERMAN: I understand the overall concept.¶
THE. COURT: I understand your position that these have been waived, okay. What I'm concerned about is the time necessary to review --¶
MR. ACKERMAN: That I understand. I understand the time component.¶
THE COURT: Okay. Let's take a short break for lunch. Be back here by 1:30. We'll talk about -- I'm going to go forward this afternoon, do as much as I can on this to get as much done as I can. So, at least, on the¶
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confidential sealed documents, which is. Tab 4C, the ones here in my hand, as I understand Mr. Scarola agreed that those documents may be utilized by the plaintiff in this lawsuit, as long as it's clear, and I so rule, that by doing so is not waiving any privilege associated with any documents whatsoever on any basis.¶
MR. SCAROLA: Thank you, sir.¶
MR. KNIGHT: Thank you, Your Honor.¶
(LUNCH BREAK)¶
THE COURT: Anybody want to say anything else before we start plowing through some of the motions?¶
MR. SCAROLA: Did you ve a nice lunch, sir?¶
THE COURT: Well o. The company was good.¶
AClifriak THE CO t., se me?¶
MR. ACKERMAN: I take off my coat?¶
MR. ACRE 111:MAA : Mind if I take off my coat?¶
HE COURT: Sure.¶
S THE COURT: My deputy has on a heavy jacket. She is saying it's cold.¶
MR. ACKERMAN: It's a little warm.¶
MR. WEINBERG: Afternoon, Your Honor. I've been nominated by Mr. Knight and Mr. Ackerman to try to respond to the Court's last set of inquiry, which is how we, as counsel, can help facilitate the privilege review and how we can narrow down the magnitude of sixteen hundred¶
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documents, which might, at least, theoretically require document by document review down to a more manageable perspective. I think there are two ways --¶
MR. SCAROLA: Excuse me. Before we proceed could I know which motion we're on? I suggest that maybe the best thing to do, if we're going to proceed here, is to focus on those matters that are currently pending. And I have no objection to taking then in the order \ich they appear in the notebook with which the CourVollas een provided. And that would mean the fir tion before the Court is our motion for reconsiders inh egarding our discovery request.¶
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THE COURT: First i tang, , I kind of asked counsel to kind of give me some ItIC erview of the discovery process and what we're de h here and I assume this is what we're still dealin th.¶
( ZR.fl I HT: This is in response, Your Honor.¶
THE COURT: That's what I want to do and then we'l 0 al with the motions in order as we have them. Okay¶
MR. WEINBERG: Thank you, Your Honor. I'm not a civil lawyer. I've been asked my by colleagues to help, particularly, because of some expertise in privileged areas and that's the reason they've asked me to address this issue. There is two ways.¶
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One Mr. Ackerman, at an appropriate time, will address with the Court and that is whether there is a legally enforceable waiver, not of the relevancy issue that was previously addressed, but of the privilege issue that would make a particularized document by document privilege analysis unnecessary.¶
The second is more difficult. Privilege logs are important. The case law that's been provided to Your Honor, principally, the Teague case requires more than Mr. Scarola has provided in terms of this privilege log. It's particularly important in terms of giving us the ability to narrow down from the sixteen hundred documents to have any potential ability to narrow it down so we're asking the Court to revia.,aot sixteen hundred, but two hundred, three hundre ur hundred. I can't promise you ) in good faith that -a-better privilege log will permit us to reduce the number of documents that we believe potentially could be related to the issues that ultimately will be litigated before Your Honor. But as it stands now there are privileged entries, for instance, RRA, meaning Rothstein firm lawyers, to Mr. . Mr. to Rothstein firm lawyers. We don't even know which Rothstein firm lawyers they are. The log lacks that degree of particularization which the rules and the case law requires.¶
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It's particularly important because once Your Honor resolves the legal issue of waivers, which I believe can be done on a category basis rather than a document by document basis, Your Honor will ultimately be looking at whatever reduced number of documents there are to put them in to three categories.¶
Number one, these are documents that, in fact, demonstrate that Mr. gave proper ethical legal representation to his three clients. These documents are related to that representation. These documents are therefore unwaived and privileged and not subject to an exception under client fraud.¶
The second category would be documents that may have Mr. , he's either the author or the receiver but may also involve that subset of lawyers in the Rothstein firm who were not engaged in good faith ethical legal representation of the three clients that Mr. represented. Who he represented before he came to Rothstein, who he represented afterward. There are, again, twenty lawyers and nine paralegals and many investigators and it's hard absent of a more particularized log and absent the Court's review of some of the documents. For instance, some go to Rothstein. Some go to RRA. May involve an investigator named Jenny that Mr. said he never asked him affirmatively to do anything on behalf¶
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of his clients. So this is that rare firm where there can't be a presumption of ethics, a presumption of legality and to simply tell us in a log the communications were with, quote, "RRA lawyers" or with, quote, "investigators" doesn't help resolve whether they're in the category of ethical lawyering or criminal fraud, which would be an exception to the privilege.¶
There is also, as a result of one of the ocuments that Mr. Scarola didn't object to us using -mail --¶
crime, THE COURT: Let me back up. • ought the crime fraud section dealt with fraud or crithe ing committed by the client not the attorney.¶
MR. WEINBERG: Not necessarily, Your Honor. Crime fraud exception has been used over and over again, for instance, by the government when they are investigating lawyers. And this really is why I'm here because before Judge Hoovler I represented a criminal defense lawyer named William Moran. He was one of many lawyers charged in the late 1990's. His law firm was searched. Many more documents than Mr. Scarola has identified in the log was seized. The Court, Judge Hoovler, appointed Barcello, who was a former Department of Justice prosecutor, because crime fraud was key. And in that case what was key is whether it was the crime or fraud of the lawyers not of the lawyers' clients.¶
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In this case, and, again, I'm not hurling any -- this is not the time for me to make allegations.¶
THE COURT: We'll deal with that later. I mean, I just finished, probably, a three day trial on crime fraud exception. I thought I read every case, including some of the similar cases dealing with tobacco manufacturers dealing with the crime fraud. And I'm having a 1'tle trouble with that but I'll deal with it when wO t o that point. Because it seems to me --¶
MR. WEINBERG: I will, if ttiFljrt wants¶
THE COURT: Not now.¶
MR. WEINBERG: -- supplement through other cases. But clearly the lawyer can't claim work-product when his work-product is in furthsence of a crime. Mr. Rothstein is a lawyer. He c protect his documents from 4 litigation or from C it I government by saying you can't see my documents, they are work-product. If the lawyer is creating the crime, as Mr. Rothstein did, there's no privilege to prevent third-parties or Courts from reviewing the documents.¶
THE COURT: We'll deal with that later. That's not my understanding but I didn't think it was quite as broad as you just stated but --¶
MR. WEINBERG: Let me supplement that piece of this argument --¶
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THE COURT: What you're telling me, though, is that you feel that the amount of documents that I may be able to, or have to review, once I get past the issue of whether or not there has been a waiver on the relevance issue, is that there may be waivers in regard to the attorney-client privilege to begin with.¶
And that second, we need a more particularized privilege log because from the log itself we can't tell whether some of these documents may or may ot ave other exceptions applicable to them.¶
MR. WEINBERG: Exactly, Ycui Hdhor. And I can't say, I cannot make a representation that a better log will reduce it to the number that the Court would feel comfortable reviewing. If the Court is not comfortable with what results from a more particularized log and after hearing Mr. Ackerman on the waiver issue --¶
HE COURT: I'm not sure comfort is the issue.¶
l4 MR. WEINBERG: Economy.¶
THE COURT: I hate to tell you but in camera revfbws are probably the least favorite thing I do but you have to do them. You have to do them. Okay. Anything else you want to tell me?¶
MR. WEINBERG: Just lastly, Judge, we now, as one of the documents Mr. Ackerman found in attorney's eyes only, we have an e-mail from Cara¶
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MR. WEINBERG: One of the lawyers at the¶
Rothstein firm. She was a former FBI agent and she says on July 29, I think our best bet is to go after those close to Epstein. And those would be the kind of gray documents that Your Honor would have to make a document by document analysis to determine does this document support good faith litigation. Is it in relation to a proper repreientation of Mr. ' client or instead is some investigator going off on an intrusive, violative conduct that only is to further Mr. Rothstein's ambitions to try to inflate the Epstein cases to advance his own investor scheme? I don't have an answer because I don't have the documents. I'm not making accusations about where any one document will fit. I'm hopeful through a log that is more particularized we can come back and say, Judge, we would like you to look at the following three or four hundred. I can't represent we can. If we can't, we would, of course, would then go and recommend to the Court what Judge Hoovler did in this massive law firm search, which is to consider the Court looking at some of the documents, either on review or de novo, and having a special and, perhaps, a special with experience in crime fraud such as a former U.S. Attorney. I know Mr. Goldberger can identify a few from the community who would have ongoing experience¶
1 2 3 from their prior jobs as an assistant U.S. Attorney, with how documents fit into these three categories. Thank you, sir.¶
4 5 6 7 8 9 10 11 THE COURT: You know, I certainly have no objection to appointing a special, however, I'm not a federal court. I don't have the authority to do that absent the consent of the parties, as I understand it. Although some of my colleagues try to get around that rule by appointing a mediator, I think it's sti whatever you call it, put a sign on a cow and call ' pig, it's still a cow.¶
12 13 14 /•:44S/14., You want to say anything else in response to that before we get into the nitty-gritty of the specific motions Agly7" here?¶
15 16 17 18 19 20 21 22 23 24 25 MR. SC ry narrowly, Your Honor. disagree with the BNs2rtion that's been made that an attorney's involvement in a crime or fraud in which the client is not participating can constitute a waiver of the client's privilege. The crime fraud exception is an exception that waives the client's privilege when the client is using an attorney to advance the client's crime or fraud. I think that counsel is incorrect about the assertion that he's made regarding the crime fraud exception. /But talking about these things in the abstract is not going to advance this.¶
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THE COURT: Okay. Let's go forward with so what motion would be first up then?¶
MR. SCAROLA: It is our motion for reconsideration of Your Honor's order sustaining objections to requests for admissions and interrogatories propounded to Mr. Epstein.¶
MR. ACKERMAN: Your Honor, before he proceeds, I think that the actual discovery requests were eft out of the notebook for this.¶
C..) THE COURT: Yeah, I've looked the --
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MR. ACKERMAN: So I havIL one for the N 4(< 1 request to produce is in theree have the interrogatories and --¶
\ THE COURT: Iltliiak I've got the request.
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MR. ACRE Request to produce is there but I don't think reques r admissions.¶
THE COURT: The response.¶
MR. ACKERMAN: The response is there. But the actdia (.. .:quest and the interrogatories are not.¶
THE COURT: Okay.¶
MR. ACKERMAN: So you can put these in your book at Three a. I apologize for not having it.¶
THE COURT: Okay.¶
MR. SCAROLA: Your Honor, this motion for reconsideration cites to the now less than recent Fourth¶
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DCA opinion in versus Tire where the Court finds it to have been error for the trial Court to have restricted discovery, which I suggest to Your Honor is even less clearly related to the allegations that are pending then the allegations in this case and their relationship to our request for admissions and interrogatories. If we can take a look quickly at --¶
THE COURT: Let me ask you a questio ut that. That's Judge Fine's tire case, right?¶
MR. SCAROLA: Yes.¶
THE COURT: As I underst # that still on rehearing?¶
14S r MR. ACKERMAN: Y and I have a docket sheet for you to look at.¶
THE CO C ) concerned that case is gone a little too far inUR discovery and I, well, I don't know what's going to happen.¶
MR. SCAROLA: Let me suggest to Your Honor that regardless of whether the broader parameters that are described in that case are or are not applicable. I think that Your Honor simply misapprehended what the appropriate scope of discovery in this case is.¶
THE COURT: Okay.¶
MR. SCAROLA: And I call your attention. We're looking at --¶
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THE COURT: Let me read the ones again that we're talking about because I didn't have them right here in front of me, the requests themselves.¶
MR. SCAROLA: My suggestion is that you start with the counterclaim itself because you'll understand their relevance more if you understand the counterclaim first.¶
evidence. MR. SCAROLA: I would just c our attention Ac r 1lia particularly to the allegations in g aph Five and Nine. If you look at those first and then we go to the discovery, I think it's hard to draw the conclusion that this is not reasonably calculated tdRiot to discovery of admissible¶
go back and read this again. THE COURT: I read that this morning buSet me C¶
AS )¶
THE COUR t J Go ahead. I'm listening.¶
MR. SCAROLA: All right, sir. Basically, what this complaint says is that Mr. Epstein has engaged in an extensive course of conduct that subjected him to civil liability, both with regard to then pending cases and potential additional cases, as well. And what he tried to do, and continues to try to do in suing Mr. , is not to assert a legitimate claim but to make an example of Mr. to deter Mr. and others from suing him for the legitimate claims that exist that are out there¶
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broadest terms.¶
So request for admission number one, you have acted on sexual preference for minor females on multiple occasions over the course of, at least, the last decade. Defining the scope of Mr. Epstein's motive to conceal his misconduct both in terms of restricting his civil liability and his punitive damage exposure, I suggest to Your Honor is, at least, reasonably calculated to lead to a 'ssible evidence.¶
Two, you have engaged in sexu44sa<?c ii t ity with more than forty minor girls between 2002 and 2006 in your residence in West Palm Beach, Florida. Which is where Mr. ' clients were assaulted.¶
Three, among the minor females with whom you have engaged in sexual activity between 2002 and 2006 was a person identified in a civil lawsuit filed against you as, and those are the identifications of Mr. ' three clients.¶
So, clearly, an acknowledgment from Mr. Epstein that he, in fact, engaged in sexual activity with these minor clients is relevant and material to what we contend is the motive.¶
Now, if Your Honor may recall, we understand that there is very likely to be a Fifth Amendment privilege¶
1 2 3 4 5 6 7 8 9 10 11 12 13 asserted with regard to each of these requests for admissions. But that's not the determination that Your Honor is making right now. You're not determining whether Mr. Epstein can or cannot reasonably assert a Fifth Amendment privilege. You're determining whether this discovery is reasonably calculated to lead to admissible evidence to the claim, the counterclaim that we have brought against him. I'm quite frankly very puzzled as to how you could arrive at the conclusion that it is not when it's these cases we are alleging that he was attempting through this spurious lawsuit to avoid liability on. All of these cases remained pending at the time that he sued Mr.¶
14 15 16 The next question, ain, relates to these same c allegations with r these three clients of Mr.¶
17 18 Number fite,talks about his having reason to believe that they were minors at the time.¶
19 20 21 22 23 24 Number six goes directly to the evidence in the underlying claims. And each of these are clearly calculated to lead to the discovery of admissible evidence regardless of what standard may be applied. What reasonable standard may be applied in terms of the scope of appropriate discovery.¶
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privilege with regard to these requests, we're entitled in a civil case to draw inferences from that so we're entitled to know whether he's going to assert his Fifth Amendment privilege or not.¶
And they also continue to have bearing as long as some affirmative relief is being asserted against Mr. but because that pleading remains undefined I need to focus exclusively right now on our pending counterclaim.¶
Each of these, and I don't know that I need to go through them because the argument is the same with regard to each of the request for admissions. They are all along the same lines. I suggest that Your Honor simply made a mistake when you denied that discovery.¶
The interrogatories are in some respects even more puzzling. The first question is what is the full name and Florida address of the person answering these interrogatories?¶
THE COURT: Hang on. Let me get to that.¶
"4Sc .0i4) MR. SCAROLA: I'm sorry.¶
THE COURT: Where is my order on that?¶
MR. ACKERMAN: Your Honor, just to make things a little bit easier. You sustained the objection to interrogatory number one. And I don't have an explanation but that's not an objection to be raised.¶
1 2 about because there is an interrogatory at the end of these?¶
3 4 MR. ACKERMAN: The ones that we're talking about are two, three, four, five, six, nine, seven.¶
5 6 THE COURT: Hang on, hang on. Where is the order? I'm trying to find the order on that.¶
7 MR. ACKERMAN: It's in there. Three B.¶
8 THE COURT: Okay. I'm sorry.¶
9 MR. SCAROLA: No, it's not, it's not tab Three B.¶
10 It's --¶
11 THE COURT: I've got thz4Ver.¶
12 MR. SCAROLA: Okay. L 1%'fr¶
13 -N . MR. ACKERMAN: I' sorry. Three A.¶
14 15 THE COURT: Inte l see where I did one, two, three, four, five, ne.¶
16 MR. SCAR C : You deferred as to eight.¶
17 18 THE COURT: And seven on attorney-client privilege.¶
19 20 21 22 MR. SCAROLA: And seven on attorney-client privilege. So I'm not sure what Your Honor was looking at but I don't see how you can sustain the objection to number one under any circumstances.¶
23 THE COURT: Actually, nor do I.¶
24 25 MR. SCAROLA: And number two, number two is going to the same issues as the request for admissions. As is¶
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number three. As is number four. Ghislaine Maxwell is a woman who is alleged to have been a procurer for Mr. Epstein who engaged in sexual conduct with the same minor girls that Mr. Epstein was abusing. She was a participant in his illegal conduct.¶
Number five had to do with the damages that were being claimed. And, again, I can understand how we couldn't address that one until we know what the damages are that are being claimed now.¶
C /14 1.2) ) Number six has to do with engaging sexual activities with minors again.¶
Number seven, Your Honor has As tained on the basis of attorney-client privilege and I think that Your Honor was confused. Because Will Scherer and the Conrad, Scherer Law Firm, were not a who ever represented Mr. Epstein. Mr. rer and the Conrad, Scherer Law Firm are attorneys who represented, and continue to represent, Ponzi scheme victims. They have interests adverse to the interests of Mr. Epstein. And it is our understanding that information was provided by Mr. Epstein to the Conrad, Scherer Firm and to William Scherer. We would like to know what information they gave them that relates to these cases and I don't know how that, that falls within an attorney-client privilege.¶
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that was deferred but I think that, certainly, is information to which we're currently entitled. As is number nine.¶
So I would ask the Court to take a look at these again. I think somehow there was some confusion on the Court's part. Perhaps Your Honor was focusing on the complaint and not discovery relevant and material to the counterclaim. If you focus on the allegations in the counterclaim I think it's very apparent that this is information we're entitled to have. Thank you, sir.¶
THE COURT: Thank you. Yes, sir.¶
MR. ACKERMAN: Okay. Your Honor, I would like to start off by saying that we had a lengthy argument about all of these issues, with the exception of number one, which I don't honestly have an explanation for. But we went through a lengthy argument about all of these issues and one of the concerns that came up at that time was that the Court was asking us whether or not, based on the complaint, that these matters were going to be at issue. We filed an amended pleading where we took these issues, to the extent that they were remotely relevant in the first complaint, out.¶
Even if you look at the amended complaint, there is nothing there that puts these matters that he has asked with this type of particularity in issue.¶
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MR. SCAROLA: Excuse me, Your Honor. I conceded that. We're not talking about discovery relating to the complaint. THE COURT: I'm sure he's going somewhere with this, I suspect, so I'm going to let him go. MR. SCAROLA: Okay. MR. ACKERMAN: All right. Mr. Scarola argued at that time his counterclaim issues, okay. And the Court entered its ruling and the motion for reconsideration came before this Court solely on the basis pf Alvarez, okay. That's the only reason the Court granted this rehearing. And my first argument is is that if the Court is not going to consider as the grounds, this is done. THE COURT: Well, any ruling, let me just say up front, any ruling on the discovery matters, interlocutory orders I can reconsider any time for any reason. The issue that I want to find the time to go to today is whether or not these are in fact, calculated to lead to admissible evidence in this case. So deal with that issue because I, quite frankly, it's been awhile since you argued that issue and I made my ruling. MR. ACKERMAN: We objected, first of all, that¶
the scopes are burden -- the scopes are extremely large.¶
Mr. Scarola's counterclaim, which he's relying on, is an¶
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directed at Mr. Epstein for this lawsuit. He, therefore, has not done so in his counterclaim, needs to particularly allege what process, what acts of the judicial system were abused in this case as he has argued to this Court. And that needs to be done before we undertake this broad, extensive discovery.¶
Now, we have objected on the grounds of the Fift Amendment. And we have argued before on the sword and shield and I need to say something about it at this point. The issues that involve -- and the Court overruled them when it came to the motion for summary judgment. The sword and shield issues come on these lines. When a plaintiff makes a claim and then claims privilege on matters related to the case, then Mr. Scarola may have a point. But nothing in this case, and he has not particularly alleged why this case and the actions in this case that have been taken by Mr. Epstein's counsel as abuse of process raised these issues. Mr. Scarola has -- and, therefore, the sword -- and this was briefed in the response, our response to the motion for summary judgment. It was extensively briefed on the sword and shield doctrine and so I'm just going to direct the Court to that.¶
But in this case we have, he has asked about sexual preferences, sexual activities. The scope of this is extremely broad. It's extremely harassing. And given the¶
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limitations of what he has to prove in his counterclaim for abuse of process, nothing here remotely leads to any discoverable evidence and that's why the Court denied it to begin with. Engaged in sexual activity. So we're going to have to invade all of these collateral matters. These will take the Court, one of the arguments I made last time, on a side trip that will take forever. we're not here, this case is not here to litigate those matters. Our case and Mr. Scarola's response are related to what 4t law firm did with investors relating to the Epstei s and how the judicial system was perverted for a Ponz scheme.¶
Mr. Scarola's response is, well, we're going to bring an abuse of process claim and, frankly, I know we're not here necessarily to re-argue it and the Court ruled in a prior order that it was an abuse of process claim. But if you look at it there is elements of defamation. There is other elements of other cases. So I think before you reach any issue with regard to whether these matters, he is going to have to be required to replead his counterclaim with the same particularity that you're requiring us to see how sexual activity with all of these minor girls are going to relate to an abuse of process claim. Okay.¶
Secondly, number three, he wants to know who he had specific sexual activity with. That's not going to bear on an abuse of process claim. Okay. He can make generally¶
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the allegation that maybe Mr. Epstein filed this lawsuit to harass Brad but this is not where it's going to go. Okay. We don't have to get into the number of minor females that he paid for. We don't have to get into all of these specific dates. We don't have to get into the names of this. And this relates to the motion that we have later on relating to pre-trial publicity. Because this stuff gets filed in this Court and the next thing we know it's in the newspapers or the Internet. And the Court, if this discovery proceeds, is going to be in a position of having to deal with those issues that may potentially taint the jury pool. So at this point they really have no relevance, okay.¶
He's asked for socializing minor females in the presence of these people. There is no charge, there is no allegation that supports this. And an abuse of process claim that he has pled, as it presently exists, including transporting these and acts of trafficking minors, are goin ake us on a side trip. Now, with regards to that s pretty much related to the requests for admissions.¶
Most of the interrogatories fall under the same category. We did raise Fifth Amendment objections there. They are not related to pursuing whether his genitals were exposed. Whether they were clothed in underwear have nothing to do with the claim that we're proceeding with.¶
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They cannot possibly lead to relevant evidence relating to this. All it will do is be burdensome,, harassing and wasting the Court's time dealing with this.¶
The same thing with number three whether your genitals were exposed. What was the number of times this lady, Maxwell, engaged in activity with minor females? What does that have to do with an abuse of process claim? This is merely done for the purpose of harassment and has nothing to do with the claims that are being broug which is why, I believe, the Court ruled in this mat to know, number six in the interroga Here he wants with regard to the last time you engaged in sexual activity with a minor state the following. We don't need to get into that. This Court doesn't need to spend its time on that. There is nothing remotely related to this abuse, of process claim that's going to make that relevant.¶
The same thing with L.M. in number eight --¶
THE COURT: Let me just ask you, his argument is, essentially, that the purpose of the abuse of process here is to cover up these alleged conduct. Or to prevent exposure of this alleged conduct by Mr. and others like him. How do you respond to that? If it goes to the motive of filing or abusing the process, how is that not - if that's true -- how is that not --¶
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Mr. Epstein pled guilty, okay. There was an overall settlement that dealt with a numerous number of victims as part of that, okay. He served time. He was on probation, okay. He entered into a non-prosecution agreement and whether they are happy with what the government did or not is really irrelevant. So how do you get to the point where he wants to cover up all of this when the government has concluded the investigation. They've agreed --¶
THE COURT: I guess it's the same 'Ilion your client pled the Fifth Amendment. I presume your concern, or not maybe concern, that doesn't protect him. I mean, I mean, that's a logical answer. don't know what happened here. I'm just, I'm asking o respond to his argument, which is, look, if the ag lasseof process here is misuse of the judicial syste t s'lence Mr. ( and others like him from pursuing lsims against your client for sexual activities with minor females or other sexual misconduct, if that's his motive for doing it, how is it not relevant that he's engaged in that conduct?¶
MR. ACKERMAN: Because the abuse of process claim does not require the proof of motive. Okay. The abuse - if you file --¶
THE COURT: It's not whether it requires proof of it. Whether it's relevant to the cause of action.¶
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one -- if the element of the abuse of process is that they took a pending case and abused the system to put some extortion on someone else, they got to establish that. To extort or put pressure on Mr. he has to establish that first before we go into all of these other matters. Because if the process was legitimately used, it doesn't matter what the motive is. 4*¶
THE COURT: Well, 1 thought that ab process, the whole theory of abuse of proc s w s being used for purpose unrelated to the proc tself, i.e. to ,- cover up misdeeds or whatever the reason ay be. At least, the allegation. That is the reason or, least, their argument. Is:, l4S y at that's¶
MR. ACKERMAN: Honor¶
THE COU !, just asking. I'm not ruling. I'm asking questioS Ir"I ere. So just, you know, he says the reason that it's relevant is because the process is being abused for the purpose. The reason it's being abused is to, the ulterior motive is to cover up and otherwise prevent the exposure of your client to these other allegations by Mr. or others like him that may be scared off or afraid to pursue it because of what he's doing right now. At least, that's his argument.¶
MR. ACKERMAN: Your Honor, based on what he's asking --¶
way. MR. ACKERMAN: -- you don't need to ask him this¶
THE COURT: Uh-huh.¶
MR. ACKERMAN: We don't need to go through and, for example, get healthcare provider records for sexual disorder. There is no issue there. We don't need to go through, in other words, what is the name and last known address of every healthcare provider which ou have been V treated or evaluated for sexual disor We haven't placed that in issue. Okay. We don' ed, and he doesn't need to be able, if the Court is correct, and to follow the Court's question, we don't need to know the date of every single one of the actions. We don't need to show in detail what he's asking about genitals. We don't need to know the number of sexual matters that were involved with Mr. Epstein to do that. He can introduce that by talking about what, you know, what he's pled guilty to. But this is such a broad request we have asserted a Fifth Amendment privilege on it and he is making this argument in defense. I mean, we were making that in defense of a counterclaim.¶
THE COURT: I'm sorry. I'm not ruling on the Fifth Amendment privilege. I'm ruling on whether or not these are relevant to the lawsuit and not whether your client has the Fifth Amendment privilege.¶
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MR. ACKERMAN: That's part of our objections right now.¶
MR. SCAROLA: Which I am not asking be overruled.¶
THE COURT: I didn't understand it to be that way. I understood it to be the question that was in front of me. Your client can always say I object on the basis but he has to specifically answer the question that way. But the question was, that I thought we were discussing, was whether or not he can be required to even give that answer because if it's not relevant or calculated to lead to admissible evidence, he doesn't have to give any answer period.¶
MR. ACKERMAN: Your Honor, I just want to put on the record that we've raised the Fifth Amendment.¶
THE COURT: Okay.¶
MR. ACKERMAN: Secondly, this is not calculated to lead to any relevant evidence. It is calculated to get harassing information that is over broad and has nothing to do with, given this type of detail, with what he claims he wants to prove, okay. The Court can certainly restrict what he's asking. That's one of our objections. It's over broad. It's harassing. It's very, very personal in terms of doing it, okay. It certainly should be limited in time. There is no effort here at all to limit the time. If the Court -- he doesn't need to answer questions about his¶
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 genitals when they were exposed, okay. If the interrogatory is rephrased so that it states that were you subject to a number of victims' claims, if so, how many, he can establish that, okay. But to go through and ask when Maxwell engaged in sexual activity with a minor female, what does that have to do with Mr. Epstein? Okay. That's someone else. Okay. And whether he did these overt sexual acts that are the subject of this request, that's really the heart of the objection. I think, I still contend it's not relevant based on what is there but, certainly, if the Court is going to find that he wants to prove motive, this isn't the way to do it. We're going to have evidentiary issues with it. The Court has discretion in discovery matters to limit it so as not to waste the Court's time with unnecessary litigation. And at a minimum, I still believe the Court needs to wait until is involved, but at a minimum the Court should sustain these objections and make him reask them so that L thear not, they're limited in time. They're limited in not\eo much detail. And that they are calculated to show why it's related to the claims in this lawsuit and these don't meet that requirement.¶
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24 25 MR. SCAROLA: Your Honor is correct that motive, while generally not an element of a tort, is always¶
THE COURT: Okay. Briefly, Mr. Scarola.¶
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relevant and material. And while motive is generally not an element of a tort in an abuse of process claim where we are obliged to show that the purpose behind the filing of the complaint against Mr. , which is the process that is clearly addressed in this counterclaim, the purpose was unrelated to any legitimate purpose and was intended to cover up an extremely broad pattern of conduct that could subject Mr. Epstein to both additional crimin ability and civil liability.¶
It is a very curious argument, in, eat' , that Mr. Epstein has engaged in so much of this criminal and tortious conduct that it would create an enormous burden for him to answer the interrogatories about how many young \*, women he has abused. 's the argument that is being made, and it soun1 /14 hat's the argument that's being made, they have thy-burden of supporting that burdensomeness argument. But there is no way that the Court could ever conclude that you have engaged in so much misconduct that I'm not going to ask you to tell us how much because it would be too much of a burden on you.¶
THE COURT: I didn't understand you to say that. I thought you were saying it was over broad, not burdensome. It's a different standard.¶
MR. SCAROLA: Well, the word burdensome was spoken many times and it was related to the scope of what¶
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was being requested and how many incidents would need to be disclosed. As far as the scope is concerned where this conduct took place, when it took place, the extent to which it is going to expose Mr. Epstein to potential criminal and civil liability is all relevant and material. There's nothing overly burdensome about this at all.¶
MR. ACKERMAN: The burdensome part of i she detour that this Court would go on, if we go t nt path.¶
THE COURT: Okay. I've hear ugh argument on that. I'm not going to rule right e top of my head here. You'll get an order by the end of the week. I got to think about this. Whichever way I go it's kind of like, in a sense, a roadmap o re we're going in the future so I really have to out that more. What would be the next one here we helve to deal with, guys? I mean, I got a pretty good idea what I'm going to do but I want to think ( eN about O • overnight before I put it on paper.¶
MR. SCAROLA: Your Honor, the next has to do with our tion for protective order and objections to a notice of taking deposition and appointment of special in an effort to re-depose Mr.¶
MR. ACKERMAN: No, that's not the one.¶
THE COURT: I'm sorry.¶
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MR. SCAROLA: Three B.¶
MR. ACKERMAN: The next one is Three B and Three C. Motion for protective order relating to a subpoena that we sent to the trustee seeking the law enforcement documents.¶
MR. SCAROLA: II, I'm sorry.¶
THE COURT: So Three B.¶
MR. ACKERMAN: Three B.¶
THE COURT: Let's me pull t Let's take about a five minute recess. I've got so iq I need to take care of real quick.¶
(BREAK TAKEN)¶
MR. SCAROLA: Honor, an issue has arisen during the recess e court reporter would like some guidance on. One C he reporters has requested the transcription of this hearing and to receive a copy and the court reporter wants the Court's guidance as to whether she can accept an order from someone other than a party in the case.¶
MR. ACKERMAN: Your Honor, I would ask that you defer that until we get to the motion relating to prejudicial statements that we're asking the Court to enter some restrictions on because of the use that has been made of statements in this case that show up in the press that¶
1 2 relate to the sexual matters, which we believe aren't relevant.¶
3 4 THE COURT: You are asking me to issue a prior restraint order, is that what you're asking me to do?¶
5 MR. ACKERMAN: It's not a prior restraint order.¶
6 7 THE COURT: Well, what is it you are asking me to do?¶
8 9 MR. ACKERMAN: We're asking you to e ter an Ch.) order -- hold on a second.¶
10 11 12 13 MR. KNIGHT: Actually, at tint I think what Joe is saying the court reporter i f we could take that up at the very end becaus may relate to some of these other issues. 4: % V¶
14 15 16 17 18 19 20 THE COURT: L4,41 make sure we get to it. Okay. Because -- well, 1 ' deal with it right now. Since it's come up let's deal kin it and we'll deal with it again, I guess, in the bider. But this is separate. This is an open proceeding. I know of no case law that prevents anybody from getting a copy of -- having a court reporter type a deposition.¶
21 MR. SCAROLA: That's my understanding, sir.¶
22 23 24 25 THE COURT: I don't know of any. I mean, can't somebody come and get a copy of anything that's in open court. I don't know, if they're willing to pay for it. Do you have any authority for that at all?¶
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MR. ACKERMAN: Well, no, because I wasn't prepared to deal with it today. My concern, though, is that we have filed -- and this would be, if you want to take this up now?¶
THE COURT: Well, I guess we better then we can go ahead and take it up in order.¶
MR. ACKERMAN: Well, this would be sections Three E and Three F.¶
THE COURT: Okay. This has actu ly eVer been presented to me for hearing before, rs¶
MR. SCAROLA: This is ne¶
MR. ACKERMAN: This is \ ne .¶
THE COURT: Okay. Give me a second, counsel. Okay. Mr. Scarola, a response to this?¶
MR. scrilpm. sir, that's the next tab F.¶
THE COUR44-2 0kay. I'll hear argument. I have to tell you, gentlemen, it's been awhile since I've had this issue come up. In fact, I think it's only come up.once in my judicial career but I will listen to argument. I will not rule from the bench today. I have to look at these cases again. It's been a long time since I read that Supreme Court decision but go ahead, Mr. Ackerman.¶
MR. ACKERMAN: Yes, sir.¶
THE COURT: Okay. And did anybody favor me with copies of these cases?¶
MR. ACKERMAN: I did not, Your Honor. We can send them in.¶
THE COURT: I can look them up.¶
MR. ACKERMAN: One of the things that's been occurring in this case, Your Honor, and a perfect example of our position on it is the summary judgment documents. Everything that Mr. Scarola and Mr. carreR'o I raise the issues of these sexual improprieties to insert in this case, the Court can see that they are doing. Okay. Once they file the stuff in the Court file it is then under the law and under the bar rules able to be commented on. So as a result, we've attached to the first motion and then the amended motion these articles where Mr. Scarola is being attributed to saying that he's a convicted pedophile. That's not true. Okay. One of the things I want to address in this. motion is up until today Mr. Scarola has constantly referred to Mr. Epstein as a pedophile. Okay. And there has been no proof of that anywhere. And it's inappropriate to do it in a Court proceeding and for it to be quoted in this manner because it will taint the jury pool. And also has no bearing on what the issues are.¶
Mr. Scarola is quoted in other areas about speaking to Prince Andrew. There is an address book. All of these will become issues in this case if this door gets opened.¶
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There is articles where Mr. Scarola says they're trying to get a statement from Prince Andrew. And it's our view that these were published comments by Mr. Scarola that's clearly trying to generate articles about Mr. Epstein and that is not the place to try this case.¶
The Court does have discretion under the Miami Herald Publishing McIntosh case to take control and prohibit extraditial commentary in order to ensure the party receives a fair trial. And you can take steps to protect against pre-trial publicity, as the Shepherd Maxwell case discussed. The limitations imposed by the Court on communications between the lawyers and/or litigants and the media are permissible for good cause in order to assure a fair trial. McIntosh case specifically states that limitations placed, on lawyers, litigants, and officials directly affected by Court proceedings may be at the Court's discretion. Muzzling lawyers who may wish to make public statements has been long recognized it's within the Court's inherent power to control professional conduct.¶
There is also a bar canon, 114-3.6 of the rules regulating the Florida Bar, called trial publicity. It talks about a lawyer shall not make an extraditial statement that a reasonable person would expect to be disseminated by means of public communication, if the lawyer knows or reasonably should know, that it will have a¶
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prejudicial likelihood on material prejudicing an adjudicated proceeding due to its creation of an eminent and substantial detriment on that proceeding. This rule incorporates the substantial likelihood of material prejudice standard that the Supreme Court adopted.¶
And what's occurred, and the Court can look at the docket sheet. I don't think I have it attached h Atim put there was a recent filing that Mr. Scarola mad at he used in support of his punitive damages abet Interview with another alleged victim. He files n the Court file and then there is an article about at has also been the case with some of these other articles. We have in the amended motion, the article is EpIIIII Claim To Intimidate Attorney Prosecuting Sex Abuse Cases. He's being quoted here. Okay. Then there is another article in the Daily News, Jeffrey Epstein Introduced Woman to Prince Andrew. That's being quoted. Mr. is quoted. Then there is a marketing firm that, Mr. ' law firm used where he states Mr. has successfully represented ten women between twelve and fifteen years old by proving that Mr. Epstein and his intentional sex trafficking criminal enterprise exploited these girls. There is simply no basis in fact for this, at least, based on the knowledge we have of the number of cases Mr. has handled.¶
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we have a British publication called the Telegraph that's published convicted pedophile. well, he hasn't been convicted as a pedophile. Okay. Much of the information is from Mr. Scarola and he's quoted in the article that we've attached and we put forth some of what he said. He wants to speak to Prince Andrew. They want to obtain additional details. We believe Prince Andrew has been in the company of Mr. Epstein. And then we talk bout The (...) Holy Grail that was reprinted.¶
C.) Then there is another British pub ion called the Observer, which Mr. Scarola is again quoted. We have another article published in the Independent discussing the same thing.¶
And we've got the RAm2r.Firm on their web site issuing press rele he d online articles referring to Mr. Epstein and th chenk wsuits. And they refer to him on the web site as the billionaire pedophile and he helped ten women seek justice. Okay.¶
We don't believe it's appropriate to wage a media campaign, taint the jury pool and pre-try this case in the court of world opinion, particularly given the Internet. Okay.¶
This is one of the reasons why I believe the Court should deny the earlier request that we spoke about with regard to the discovery on these specific sexual matters¶
1 2 3 because they will then be in the press. And that will be, then we will be faced with real issues about a fair trial. The Court can place these limitations --¶
4 5 6 7 8 9 10 11 12 13 14 THE COURT: Help me out here. The McIntosh case, I read this and there has been some Supreme Court cases since that decision, as I understand, that tell me what the threshold or what the standard is that I have to apply before 1 do that. I know I have the authority o that. I, certainly, have the discretion to do th c here's a standard set forth in these cases, as all it, that tells me what you, you or the person Act ally seeking this restraint, is required to establish before, before I go xiN,Nis Air down there. So what is it ha r do the cases tell me on that?¶
15 16 17 MR. ACRE he Court -- we have proposed what the Court can do.. says that no person covered by this order¶
18 19 20 21 22 23 24 25 rko, THE COURT: No, no. You misunderstand me. Let me a nthe question again. I'm not asking you what you wan&le to do in terms of restraint. What I'm asking you is what is the threshold of the bar you have to reach in order to get such a restraint? As I understood it, if I recall right, the McIntosh case sets forth a standard that I have to utilize before I, I use my discretion by entering such an order. It's been awhile.¶
AC4cLmv¶
1 2 3 MR. SCAROLA: That standard is described in our memo, Your Honor. It's quoted at page three, the top of page three in our memo.¶
4 THE COURT: And your memo is at?¶
5 6 MR. SCAROLA: That's tab F. Comes right after their memo.¶
7 8 9 10 11 12 MR. ACKERMAN: Hold on. To justify a prior restraint the activity must pose a clear and present danger, or serious or eminent threat to a protectinjg competing interest and that such a restraint ca Airre cannot be upheld if reasonable alterneti es are available and that's what McIntosh says. N7" upheld or --¶
13 14 MR. SCAROLA: That's a direct quote from McIntosh, Your Honor, that's correct.¶
15 16 17 18 19 20 21 22 23 24 25 MR. ACKERMAN: But the Court also -- and that talks about pre-trial proceedings. Okay. This can go on between now and the time we go to Court, as long as we are discussing these issues. And by the time we get to trial, you know, and the issue I think the Court is concerned about is eminency. But we have a history right now that's been established. If the Court allows this discovery to proceed that we've previously argued and does not place - and the case law says that a Court -- prohibition on comment is an acceptable alternative to prior restraint, which is cited in the Florida Freedom Newspapers versus¶
1 2 3 4 5 6 7 8 9 10 11 McCrary case, which is a Florida -- I'm sorry. Yeah, Florida Supreme Court case 520 So.2nd 32. And it can outline, the Court has also outlined other measures short of prior restraint on publication. Okay. And that has been held to be an appropriate way of doing it. And what the Court can do, and what we're proposing to do, is enter some pre-trial order that before any comments are made or anything is filed relating of a sexual nature, the Court review it and impose limitations on counse before they comment to the press. These matter:2c, the Internet and there is really no way to deal • t. 4st,¶
12 13 protect .the Internet anywa; THE COURT: The orde enter isn't going to Ass"¶
14 15 16 17 18 19 20 21 22 23 24 25 MR. ACKERMAN: an't stop the Internet. What you can do is stop stop the lawyers from talking to about st iff before it gets filed in the Court file. For example, Mr. Scarola recently filed an interview of a woman that was an alleged victim of Mr. Epstein's actions. He filed that with a pleading that said this is being filed in support of some motion, followed by an article in the paper. Okay. That's what we're asking the Court to exercise some control over. The case law, as I understand it, states that once it's in the public record the lawyers are allowed to comment on it. But what we're trying to do is prevent that so that we don't have an¶
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unnecessary amount of pre-trial publicity on issues that may not, and the Court may ultimately rule on, have nothing to do with this case. Okay. You are not there yet on that decision, okay, on what the ultimate issues are. And until that occurs, the lawyers shouldn't be making any comments to the press about sexual conduct claims involving Mr. Epstein with the specificity Mr. Scarola has been% saying.¶
What we're proposing is that is conta' ed page eight and nine of the amended motion. basically states that no person covered by this>or er shall make no statement to the media that could interfere with a fair trial. Notwithstanding that, the Court --¶
THE COURT: age are you on?¶
MR. ACKE 'm on page eight and nine of our amended motion.¶
THEthT: Does this come out of a case?¶
( IC MR. ACKERMAN: Yes.¶
Lim:SS::)THE COURT: What case? Because I wouldn't know wha&s: the world that could interfere with a fair trial or otherwise prejudice the parties in administration of justice means. That's kind of vague. You have a case that that came out of?¶
MR. ACKERMAN: Yeah, I do, Your Honor. I have to locate it. I believe I have it. Your Honor, I don't have¶
1 2 a copy of it. I'll have to get it to you. I thought I had it with me.¶
3 THE COURT: Okay. Go ahead.¶
4 5 6 7 8 MR. ACKERMAN: But these cases do allow the Court to make a balancing test between free expression and a fair trial. And in this case, I don't -- we're asking for some protection because if we end up, for example, doinaitvideo deposition --¶
9 10 11 12 13 14 15 16 17 18 19 20 21 THE COURT: There is a distinction between asking for protection against publicity or statements being made and asking for protection in regard to the integrity of a fair trial. Those are two different things. You understand what I'm saying? The mere fact that somebody says something that your client finds offensive or doesn't like or feels that, he's been invaded by that comment is not the same thing as my concern, which is, which is that there is a fair trial in this case and can your client get a fair trial with pre-trial publicity. You see what I'm getting at? Because you seem to be focusing most on, you know, this thing affects your client, are, you know, libel or slander.¶
22 23 Honor. MR. ACKERMAN: No, no, that's not the issue, Your¶
24 THE COURT: Okay.¶
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THE COURT: Because I don't have 'any evidence in front me at this point that whatever pre-trial publicity has gone on or been said or whatever has been said or done, and I don't know what all has been done, has in any way affected our ability to sit six jurors in this particular case that don't know anything about this case and otherwise are able to render a fair verdict.¶
MR. ACKERMAN: Here's what I ask t C he Co consider.¶
THE COURT: 'Okay.¶
MR. ACKERMAN: Okay. Let/sh thetically, and we don't believe the Court should allow this to occur, but hypothetically, let's assume that the Court allows a substantial portion of iscovery that Mr. Scarola was arguing about befotev a 's assume that that gets in the Court file. Let''aeLme that Mr. Scarola or Mr. i is allowed to make continual media releases about it between now and the time we have a hearing. Let's assume that in response to some of these discovery requests we will be filing motions under 90.404(b), which relates to other bad acts, to keep that information out because it's merely being introduced to prejudice the jury. The Court will have to conduct a balancing test in terms of whether its proposed relevancy is outweighed by the prejudicial impact. Based on the information that they are seeking,¶
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that will be an enormous task. Based on what is likely to occur, if this occurs, there will be numerous media publications continuously now through the case gets tried. Okay. If it's tried. And at that point in time we will then be faced with a potential jury pool that will have had a steady dose of this and I believe that that is wrong to do at this point, particularly, when the Court has not solidified the issues about how extensive this will be. And at that point I think the Court, it is well within the Court's -- the Nebraska Press Association case states that while restrictive orders unquestionably are permissible within certain limits, the U.S. Supreme Court has not made any distinctions between restrictive orders and prior restraints. Instead, Nebraska focuses on balancing free expression against t ing interest in a particular context.¶
In this case what I'm trying to say is that if my hypothetical proves to be true, then we will be faced with a jury that will be tainted because of all of the publications. And we will -- if this case is limited to abuse of process, and Mr. Scarola can inject this into it, then the jury, in my opinion, and I will argue to the Court, will not be able to set aside any instructions the Court makes relating to 404(b) evidence. We have Fifth Amendment issues that are coming up. And I submit that¶
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before any further media reports occur that the Court at least instruct the lawyers that there be no more media discussions about the sexual activities until you've ruled on whether they're relevant. And then place some control on what the lawyers say so that by the time we do get to trial the media -- the jury pool is not tainted, whic 41/,' clearly will occur based on the pattern we've see now.¶
THE COURT: Yes, sir.¶
memorandum addressing these issues could be MR. SCAROLA: We have filed tensive 4st unconstitutional for Your Honor to mpose any type of gag order on us at this point in time. Particularly considering the fact this matter has not even yet been set for trial.¶
THE COURTS-'Not even at issue.¶
MR. SCAROLA: Not even at issue. We don't even have a complaint filed yet. So the case law is clear that there must be a clear and present danger that a jury pool could be tainted by specific --¶
THE COURT: Does that standard apply to gag orders as to the attorneys, as compared to power of restraint of the press or something of that nature?¶
MR. SCAROLA: It applies to gag orders with regard to attorneys.¶
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MR. SCAROLA: Yes, sir, it does apply to gag orders with regard to attorneys. And the standards that are applicable, I suggest to Your Honor, clearly cannot be met under the present circumstances. And there is a complete and total absence of proof before Your Honor that we have engaged in any conduct whatsoever that could be prohibited under any circumstances.¶
We have had the opportunity to appear clilational television. We have had the opportun conduct extensive press interviews. We have Had the opportunity to issue press releases. We have not engaged in any of that conduct. The press has taken a keen interest, particularly, the foreign press has taken a keen interest in this case and there have been a lot of articles that have appeared in the British press ever since a victim of Mr. Epstein's has made public statements that have associated British royalty with Mr. Epstein.¶
They have been very interested in what is going on in this case as a consequence of that. And we have had many opportunities to speak to the foreign press about these issues. We have scrupulously limited any response that we have made to contacts initiated by the press to matters that are matters of public record and available to the press by going to the courthouse and reading this Court's¶
2 3 4 5 6 7 8 If Mr. Epstein is embarrassed by Mr. Epstein's conduct, that's Mr. Epstein's problem. And, quite frankly, I'm pleased to hear that he's embarrassed by his conduct. Maybe it will serve some deterrent effect in the future on Mr. Epstein. And if this case and what Mr. has been through serves the purpose of increasing Mr. Epstein's embarrassment over Mr. Epstein's misconduct, that's great.¶
9 10 11 12 13 14 I will tell you that the focus of public attention on this case has served the interests of my client because it has produced witnesses that we otherwise might not have known about. And I welcome further public scrutiny with regard to this case for that reason because it will aid, ultimately, in the pursuit of justice.¶
15 16 17 18 19 20 21 We object to any restraints. I will tell you that once this case is set for trial we will scrupulously avoid participation in any public comments with regard to this case that could possibly interfere with our ability to sift a jury because the last thing we want to do is interfere with our ability to get justice in this case. Thank you, sir.¶
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24 25 MR. ACKERMAN: Directing your attention to pages five and six here is the bar rule and it specifically is¶
MR. ACKERMAN: Your Honor.¶
THE COURT: Yes, sir.¶
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restricted to a lawyer shall not make extraditial statements that a reasonable person would expect to be disseminated that will have a substantial likelihood of materially prejudicing an adjudicative proceeding.¶
THE COURT: Let me ask you this question.¶
MR. ACKERMAN: And that's incorporated into the Gentile case, which you asked about earlier.¶
THE COURT: Okay.¶
O MR. ACKERMAN: And --¶
THE COURT: I'm not sure th lorida bar rule provides legal authority for me and constitution, to enter an order. I mean, it Illy result in sanctions to the lawyer.¶
Sh MR. ACKERMAN: , bar rule, that's exactly what Gentile says.¶
THE COUR t—) Tell you what, guys, I understand both sides of the argument here. What I need to do is go back and look at the cases. Do you all have them here? It's been a long time since I read the cases that --¶
MR. ACKERMAN: May we submit them to you?¶
THE COURT: No. I want to go back and take fifteen or twenty minutes and let me read the cases, make a decision. This is something you guys need to know right now because it's going to affect also what the court reporter does.¶
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of trial proceedings, as guaranteed by the freedom of the press in provisions in the United States constitution.¶
And, specifically, has held that prohibition on comments is, in fact, different from prior restraint. And the press has a right to print anything and we can't, or should not, restrain that except in the most extreme of circumstances. But the comments of counsel can be restrained.¶
Having said that, it seems the Supreme Court has adopted, Supreme Court of the United States has adopted a lesser standard when imposing limitations on comments by counsel, as compared to any prior restraint of the press. And the standard which is set forth seems to be substantial likelihood of material prejudice and the Supreme Court of the United States said that is a constitutional permissible balance between the First Amendment rights of attorneys and the guarantee of a fair trial.¶
Having said all of that, at this point I will deny the motion simply on the basis that I have no evidence in front of me that would establish that that standard, that comments by counsel or anything that counsel has said, done or would do, would have a substantial effect or substantial likelihood of material prejudice to this case at this point. I think that is an evidentiary thing that requires me to make findings of fact and facts on the case before you actually say, before you enter such a gag order you¶
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actually have to make finding of fact that would support it before you can prohibit the comments as an acceptable alternative to any prior restraint. So I'm denying the motion on that basis at this point in time because I just have nothing in front of me other than this one motion and hearsay documents, which are attached at this point in time.¶
Honor? MR. ACKERMAN: May it be without pre, ud c, Your¶
THE COURT: II, any ruling his is without prejudice. Okay. But having said there, I would hope counsel, both sides, would understand the necessity for having a fair trial in this case. And one of the comments the Supreme Court made is that one of the reasons that the courts do have some restrictions on the attorneys, aside from them being officers of the Court, is sometimes their statements are taken more authoritatively than others. So, anyway, I'th denying the motion at this point and time.¶
Let's talk about, I see nothing in the rules that would prohibit the press of obtaining a copy of this. They can be in here photographing and videoing this entire proceeding, as far as I know, without my permission. Couldn't they?¶
MR. KNIGHT: Your Honor, the comment we made to the court reporter before is we haven't ever researched the¶
2 3 THE COURT: I'm not prohibiting it, is what I'm saying.¶
4 5 MR. KNIGHT: I don't know what their normal standards are and we did not want to comment on it.¶
6 7 8 9 10 THE COURT: Whatever she wants to do is her choice. I'm not prohibiting the press from obtaining it, if they want to obtain copies of the proceedings, they can obtain it. I'm not entering any such orderiCause it seems to me the cases also said the pr s entitled to.¶
11 12 13 14 15 16 I also point out that most of these cases were criminal proceedings. I've never seen a civil case where there has been a gag order and, perhaps, there are. But in my twelve years, eleven years on the bench I've never seen one in this courthouse or heard of one but that doesn't mean it's not proper in the right circumstances.¶
17 Okay. Having said that, let's move on. What's next?¶
18 19 MR. ACKERMAN: Your Honor, that would be Three B and C.¶
20 THE COURT: Three B and C. Okay. Go ahead.¶
21 22 23 24 25 MR. SCAROLA: Your Honor, this is the defendant's motion for protective order and objections to a notice of deposition duces tecum addressed to the trustee, Herb Stettin, seeking a substantial number of e-mail communications exchanged between RRA attorneys and¶
1 2 3 4 5 6 7 8 9 10 11 12 government officials and law enforcement officers. The objection is to relevancy first. There are ten thousand two hundred and fourteen pages of e-mails exchanged between RRA attorneys and government officials and law enforcement officers. And in light of the fact that there is no pending claim against Mr. , that discovery certainly couldn't be relevant or material to any pending claim against Mr. . And in light of the allegations that we have made, there is no reasonable argum ekt2hat (A1/4 could be made that that discovery is reasonably ulated to lead to admissible evidence with regard hing having to do with the counterclaim. iss" ff¶
13 14 15 16 17 18 19 20 21 22 4. So in the present state of the pleadings no relevancy can be shown to the counterclaim. No claim is pending. The best way for Your Honor to handle this at this point is to grant our motion for protective order and if allegations are made in the primary complaint which arguably could make this discovery relevant, they can re-issue their subpoena and 1/44) re-address it in the context of whatever elle ations are then made. I can't imagine that they are going to make any allegations that could make this information relevant or material.¶
23 24 25 The primary concern that we have is that if relevancy generally were determined, we need to review ten thousand two hundred and fourteen pages of e-mails in order to make¶
1 2 3 determinations as to whether there are appropriate privilege and work-product objections. We don't want to have to do that, so --¶
4 5 6 THE COURT: Let the ask you what privilege or work-product objections would exist between a communication between the law firm and third-parties?¶
7 8 9 10 11 12 13 14 15 16 MR. SCAROLA: The common interest privilege that existed between the prosecution of the civil claims and the criminal prosecution that was ongoing with regard to Mr. Epstein. The common interest, the common interest privilege could clearly cover both attorney-client communications and work-product. So there is potential privilege objections that need to be evaluated. There are potential privilege objections that need to be evaluated. But at this point there could be no possible relevancy as to those communications.¶
17 18 MR. ACKERMAN: Your Honor, I think it's important, first of all, if you have --¶
19 20 21 THE COURT: Let me stop. Somebody prepare an order on the, what .I just ruled. You don't have to write out all the details but just --¶
22 MR. ACKERMAN: I will. Unless you want to do it?¶
23 MR. SCAROLA: No, that's quite all right.¶
24 THE COURT: All right.¶
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to address this now even though you've dismissed the complaint because for these reasons, and let me show you.¶
If you can take that packet that I gave you, I can demonstrate why this is relevant.¶
THE COURT: What packet?¶
MR. ACKERMAN: The packet of the documents that I submitted to you --¶
THE COURT: II, okay.¶
I MR. ACKERMAN: -- that Mr. Scaro ooking at.¶
I¶
THE COURT: Go ahead. I'm ning.¶
MR. ACKERMAN: Okay.¶
\ THE COURT: Although4' d 't think I can get this thing open, it's sealed. `Do you have a letter opener handy? Go ahead.¶
MR. ACRE unfair at this poi reliminary basis I think it is o stop discovery while we amend the pleading as it relates to this claim. We will be able to prove and allege that Mr. Rothstein ran a Ponzi scheme. The e-mails that I'm going to show you here are e-mails that Mr. Rothstein sent to the investors using the Epstein cases.¶
We have proved in deposition that the Epstein case files that Mr. was prosecuting were shown to these investors and their counsel. We can establish that the investigators that were working on Mr. ' case¶
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against Mr. Epstein were showing the law firm's case files to these investors.' we can show, we can make an amendment on the damages that will clear up the issues relating to damages.¶
And I'm going to show the Court now the relevance of why on the overall claims, so the Court doesn't delay the discovery, but, specifically, the relevance with regard to this request and the inability at this point .t ed with counsel's argument on a privilege. l r¶
If you look at, I think it's the "Mt document, 01404. Okay. This is an e-mail from Adler to Brad copying Mr. Nurik and it relates to the non-prosecution agreement, which is in our complaint. Mr. Adler is saying to Mr. Edwards that he had a great conversation with Mr. Nurik, who is another lawyer in the firm, about the agreement and they wanted me to discuss the possibilities. Now, this is an agreement that's already been entered into by Mr. Epstein and the government. Okay. That takes us out of the joint prosecution, joint defense argument that Mr. Scarola made. That also refers to the assets.¶
Okay. We go to the next one, 01661. This is from Mr. to Mr. Adler dated July 18th, 2009, where Mr. said to Mr. Adler. I want to talk to you about a few things. If we make the right moves we may be able to¶
1 2 force Epstein to settle for a lot of money but we have a couple of issues to deal with.¶
3 4 5 6 7 8 The next one, 05087, deals with Qtask and that is here for two reasons. One, is to demonstrate to you why we still need those records down the road. But also to show how Mr. is using, the media to feature the firm and the Epstein case, which we believe was part of the Ponzi scheme.¶
9 10 11 12 13 14 15 16 17 18 19 20 When you go to the next one, 07304, i e-mail from Mr. to Mr. Kassel, who is her lawyer that is representing some of the vict e crime victims rights act, where they say we have nothing more on moving assets. And that's in the first part. And down below, section three, he says • 1 think collection is going to ultimately be the ey sAue and they have lack of proof of transfer of assets. C ow, in the federal court proceeding they filed a pre-judgment motion to prevent the transfer of assets, which was denied. And here they are acknowledging potentially their lack of proof of being able to do it.¶
21 22 23 24 The next one, 00158, is from Mr. to someone in his firm directing her to send third-party subpoenas for prescription records, which weren't at issue and which we had placed in the complaint.¶
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to one of the secretaries requesting a meeting with Scott at some point to discuss Epstein. Now, this is particularly important now, and as I go through because Mr. has testified in his deposition that he only had a few, he had almost no conversations with Mr. Epstein --¶
MR. KNIGHT: Mr. Rothstein.¶
MR. ACKERMAN: I'm sorry, Mr. Rothstein. Thank you. Where an expletive deleted was used and claims privilege on the other conversation.¶
So then we have 01685. I'm sorry, I skipped one. Do you have the,-- there is one from Cara, who is an ex FBI agent that is saying to Mr. Edwards, let's go -- I don't have it right iq fcci:t of me because but you have it right there.¶
THE COUR CI think our best bet is to go after ,Sr the close friends.¶
MR. ACKERMAN: Go after his friends. Which we contend supports our abuse of process claim.¶
Then we go to 01685, which is Mr. to Mr. Fiston, one of the investigators of Mr. Jenny, who he, in his deposition, denies having this type of conduct with, and talks about audio monitoring and recording in the law firm. And that someone talking on the speaker phone can be recording that. Now, we've alleged in the complaint that¶
1 Mr. Rothstein represented to these investors that he had 2 high-tech electronic surveillance equipment in order to 3 make this Ponzi scheme go.¶
.4 With regard to this motion specifically, 05112, 5 Mr. is directing an e-mail to two investigators, 6 Mr. Jenny and Mr. Fiston and Mr. is a third 7 investigator, and Cara, the lawyer we just 8 mentioned, speaking to the U.S. Attorney. She said if we 9 have proof of him being out of Florida, they will be in 10 violation of the agreement and she will prosecute him. Her 11 and the state attorney both called on probation. This is 12 why we want to get these records because we believe that 13 they were purposefully going out of their way in an effort 14 to revoke his probation and this was subsequently a portion 15 of something that was litigated before the federal court 16 and found not to be accurate.¶
17 05113 talks about serving Alan Dershowitz, which we 18 discussed earlier.¶
19 01406 is talking about taking Mr. Trump's deposition. 20 And we can put those matters into the complaint, as you 21 talked about earlier.¶
22 01212 is the proposed subpoena for Dershowitz. And 23 Alan Dershowitz was one of Mr. Epstein's criminal lawyers 24 in the criminal complaint, criminal cases, and they're 25 subpoenaing him for deposition in this case.¶
1 2 3 4 5 6 7 8 9 10 11 Now, 26477 is a memo from Ken Jenny to Scott Rothstein advising him that the lawyers and investigators working on the Epstein matter are meeting on the twelfth floor at two p.m. to discuss where we are in the investigation. And this is crucial for a number of reasons because it provides one of the links, we believe, between Mr. Rothstein and Mr. through these investigators where Mr. Scott Rothstein is going to these meetings, learning what is going on and this is the same time period where he is pumping up his cases, these Epstein cases to these investors, which we'll show in subsequent e-mails.¶
12 13 14 15 16 17 18 19 Okay. Now, we begin the e-mails that Rothstein, Mr. Rothstein is sending t he arious investors. A. J. Discala is one a investors. And then if you go to 27303, Mr. Rot s sending out to Priam who I believe is one of investigators, we have no money in for this client. She left screaming. This is really bad. We can -lose the entire plaintiff's group, which we believe related to Mr. Epstein's cases.¶
20 21 22 If you look at 04996, again we have another meeting for Mr. to the number of people that were involved to discuss this matter on October 22nd, 2009.¶
23 24 25 Mr. Rothstein in 26817 says I cannot have this blow-up in my face. These clients talk to each other. If I burn this client, I can end up losing all my clients in the¶
1 2 Epstein case. And this is occurring within the same day that these people are meeting to discuss the case.¶
3 4 5 6 7 8 If you flip over to 26335, Mr. Rothstein is sending the e-mail to A.J. Discala, Clockwork, an investor, Kretschmer, who I mentioned, and M. Priam and at the last sentence he states my client clearly feels I have lied to her about her funding. She is one step away from going. to another lawyer and the Florida Bar.¶
9 10 The next one 02992, we have another matinggoing to all of these people in the law firm.¶
11 12 And then 27013 we have the docCent of the Epstein case that were in Mr. Rothstein's office.¶
13 14 15 16 17 So we have, contrary to what Mr. has testified in the deposition, these documents establish that Mr. Rothstein conducted the Ponzi scheme with investors for the Epstein cases and unlike Mr. ' testimony, there's numerous meetings --¶
18 19 20 21 22 23 24 25 MR. SCAROLA: I'm sorry to interrupt, Your Honor, but Mr. Edwards has never ever denied that Mr. Rothstein was engaged in a Ponzi scheme. And to tell this Court that he has testified in his deposition that that didn't occur, that's just false. I don't know what this is all about but what we're supposed to be talking about is whether the documents that were subpoenaed with regard to the federal government have anything to do with the pending¶
2 MR. ACKERMAN: Your Honor, I have --¶
3 4 THE COURT: Let's do kind of focus in on the issue here.¶
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ACKERMAN: I will. The point of this was to establish the parameter from which we made the request to show the relevancy of it. The point I'm trying to make -\ with Mr. is that he testified there wa imited number of people involved in the prosecution of is case against Mr. Epstein when these documents clearly show that that's not the case. So we have requested, because we believe at the time they get the non-prosecution agreement that deal is over with, there is no basis at all to assert a joint privilege claim. Instead what it appears to be is that they are looking to try and interfere with the non-prosecution agreement. And so, we, because that part of our theory of our case, if you go to the subpoena, Exhibit 1, we have listed all e-mail communications between the attorney and employee of this Rothstein firm, which list these people, which we believe were involved with it and we specifically list the U.S. Attorney, the State Attorney, the Federal Bureau of Investigation, the Palm Beach Police Department and any investigator working for the state of Florida and anyone that represented an individual with a claim. Now, if you go to --¶
MR. ACKERMAN: If you go to my response.¶
THE COURT: I'm looking at your response. Okay.¶
MR. ACKERMAN: Okay. Under the one.¶
THE COURT: I got it. One.¶
MR. ACKERMAN: Next page Schedule A is the¶
MR.. KNIGHT: Let the judge catch up wit ou.¶
(Fr MR. ACKERMAN: I'm sorry. Schedule he documents subpoenaed.¶
THE COURT: Okay. Go ahead.¶
MR. ACKERMAN: If you go ibit 2 in response to an e-mail from Mr. Litman, who*.i the attorney for the f4lk bankruptcy trustee, we gam im the specific names for a specific search for thl9Liubpoena. As you can see, there are lawyers in the 0,. torney's office. There are people in the Palm cid ch Police Department. There are people in he FBI. And there are people in the State Attor ' Office. If you go to Exhibit 3, this is Mr. ' C Ian's response. He talks about refined e-mail search, which sought documents reflecting the communications between RRA lawyers and government officials, which, if not all, are law enforcement officers. He has a disc of those documents that are responsive and that are stamped.¶
THE COURT: Okay. Go ahead. Really, focus in on the issue as to relevance, at this point and time.¶
MR. ACKERMAN: The relevance is, Your Honor, first of all, we believe that part of this Ponzi scheme was designed to do things to Mr. Epstein so that Mr. Rothstein could tout those things to these investors to increase the amount of money that they were investing. In our amended complaint we went through the things that he told the investors. That they had the eavesdropping equipment --¶
THE COURT: This is, this is the government. This is the government, not the investors. It's not communications with the investors. What are you, you looking for any communications between U.S. Attorneys, police and these people? How -- I mean.¶
MR. ACKERMAN: Because we believe there was an effort to torpedo this non-prosecution agreement. We believe that they were taking steps to cause a breach or get the government to revoke it after Mr. Epstein had agreed to it. We believe that that is an abuse of process. Subpoenas in those civil cases --¶
THE COURT: Let me get this straight. Are you saying that an alleged victim of a crime has no right to be involved in or to petition the government or even to suggest to the state attorney or anybody else that what¶
1 2 they're doing is contrary to their interest and get it revoked, you think that is an abuse of process?¶
3 4 5 6 MR. ACKERMAN: When the agreement has already been made. Okay. Your Honor, and this is, this was an agreement that was reached. Okay. And they're attempting to undermine the agreement.¶
7 8 9 10 11 12 THE COURT: I'm having trouble here. Yo 'r telling me or you're suggesting that a victim canno' tgo to the government, even after a reached agreement and say, you know, this is bad. I didn't have the input put into it or whatever the reason they think it shouldn't be existing, I mean, isn't that V/¶
13 Th. - MR. ACKERMAN: YokHonor, first of all --¶
14 THE COURT: You think that's an abuse of process?¶
15 16 17 18 19 20 21 22 23 24 25 MR. ACKERMAN: We're not talking the victims. We're talking about RRA doing this. And not only that, we won't know until we get them to see whether they're related to the victim or related to this case. You don't have to do an in camera review. We can look at the documents and determine whether they relate to a victim. They're still not privileged. They're going to third-parties. we don't have a privilege issue here. If he is advocating a case on behalf of his victims, there is no privilege. He's potentially in an adversary situation and there is a present adversary proceeding involving this crime, which I¶
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have placed in this complaint. But if he is advocating that, then there is no privilege and we should be able to look at those documents to see if, in fact, that's what they were doing or they were using it based on what I've given you to show that they were really trying to, to effectuate this Ponzi scheme.¶
THE COURT: These are relevant to show what,,c, again? I'm really -- I'm sorry, I'm dense butriS¶
MR. ACKERMAN: Your Honor, we believe that Mr. Rothstein, and we believe Mr. participated in this, undertook a number of things in the Epstein lawsuits that would assist them with the marketing of this investment.¶
One of the things we believe they did was to proceed to interfere -- to proceed to destroy this non-prosecution agreement that had already been reached between the government and between Mr. Epstein. We believe that they undertook surveillance, for example, in order to effectuate that. We believe that had nothing to do with these cases that they were prosecuting against Mr. Epstein on these three people. We believe it was a concerted effort to attempt to have Mr. Epstein's probation violated. And if you look at the privilege log, there is a designation between Paul Kassel and Mr. relating to violating his probation.¶
THE COURT: Is there already a privilege log regarding these? There is not, right.¶
MR. ACKERMAN: There is a privilege log that just describes the subject matter of that communication. It does not relate to this document because the privilege log was not prepared with the documents we're talking about.¶
THE COURT: Okay. So we don't have a privilege log?¶
MR. ACKERMAN: Not related to these.¶
THE COURT: Okay. I understand. Yes, sir.¶
MR. SCAROLA: It is extremely frustrating to have counsel repeatedly talk about what he believes when his beliefs are neither relevant, nor, based upon facts and, indeed, are directly contrary to the facts.¶
The crime victims right act complaint filed by Mr. was filed by Mr. before Mr. ever had any association whatsoever with RRA and before he ever filed any civil action on behalf of his clients because his client victims were upset about the sweetheart deal that Mr. Epstein had gotten, he had every right, he, Mr. , had every right and, indeed, a responsibility to his clients to vigorously petition the government for the redress of what they perceived to be a serious grievance.¶
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presently pending. And when counsel repeatedly talks about interference with the non-prosecution agreement is part of the theory of our case, there is no case right now. They haven't stated a claim. And the only claim they attempted to state was an abuse of process claim, which has got nothing to do with tortious interference with a non-prosecution agreement.¶
They, when repeatedly given an opportunity to relate this requested discovery to an effort to obtain evidence reasonably calculated to relate to the pending counterclaim, are unable to do it because it can't be done.¶
Your Honor, respectfully, should grant our motion for a protective order. And if after they have decided what it is they want to try to sue Mr. for, they have restated another claim and they believe that evidence in the hands of the trustee with regard to communications between RRA attorneys and government officials and law enforcement officers is relevant and material to whatever new fabricated claim they attempt to state, we can come back before Your Honor and address it in that context. Thank you, sir.¶
MR. ACKERMAN: Your Honor, may I give a brief response?¶
THE COURT: Briefly, yes, sir.¶
1 2 documents I'm trying to give the Court where our inferences can be that can lead to discoverable information, okay.¶
3 4 5 6 7 8 9 10 11 12 13 14 And I think for the Court to postpone this until we have an amended complaint when we have this information in front of us, which we believe shows a link to a set of patterns where they are talking about the non-prosecution agreement, where they're going after his friends, where there are numerous meetings with the whole firm at the time this investment is being made, that that shows acLa7 and why this is relevant. And if the victims dverse to the government, then they don't have a joint privilege. And I submit to you that these are relevant for what our ultimate theory of the case is going to be, which you can see, and what these documents that we have right here demonstrate.¶
15 16 17 18 THE COURT: Okay. What is the next one? All of these orders will be out by Friday, gentlemen, because I'm going -- Xa tually be out by tomorrow. So go ahead, what is the ne one?¶
19 20 21 22 23 24 25 MR. ACKERMAN: Okay. Your Honor, I would like, this one, Three D involves an amended supplemental motion based on, and to be able to compel Mr. to answer questions at a deposition. One of the things, since we have a number of issues relating to privilege, that there's one thing that I would like to address in this deposition because it deals with a request to produce on another¶
1 2 3 motion that relates to damages, okay. If the Court can turn to Three C, Three D. And I'm trying to save some time.¶
4 5 6 7 8 9 MR. SCAROLA: May I make a suggestion to save some time? Mr. has been deposed extensively already. If there is any, any circumstance under which he's going to be deposed again, it, certainly, come after he knows what the charges are agai not before. ought to and¶
10 11 12 13 MR. ACKERMAN: With one exc, and the reason I'm asking now are the damages in t ounterclaim. Okay. The damages in their counterclaim, he was asked extensively --¶
14 15 THE COURT: What are you asking me to do? Are you asking me to redepose him on this one question?¶
16 17 18 19 20 21 22 23 24 MR. ACKERMAN: I'm willing to defer the deposition on this one issue to a time where it makes sense to address other issues. But I don't want this objection that he's made in the deposition to keep me, keep us from getting the information for his damages in the counterclaim, which we have not received and is a subject for another motion. They raised objections as to how much you were making. We asked him -- let me back up. If you go --¶
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is the request what we're dealing with. I mean, seems nonsensical for me to decide questions in the deposition at this point until we know exactly who is suing who for what and then you can get them altogether at one time.¶
MR. ACKERMAN: I can. The only reason I'm bringing it up is in the deposition we attempted to make an inquiry on financial parts that we believed were relevant to defending the counterclaim and he raised an objection of economic privacy. That is also raised in our request to produce.¶
THE COURT: You can still do a request to produce, if that's what you want to do. I don't think we deal with it at the deposition stage.¶
MR. ACKERMAN: So just defer this motion?¶
THE COURT: I'm not going to, seems silly to me to order, unless you want him to, just to answer it by, if I grant it, answer it by way of interrogatory. I don't think you are going to like that.¶
MR. ACKERMAN: Well, at some point we need to redepose him on the damages.¶
THE COURT: My point being is if you're not going to accept an answer by way of interrogatories, then you're going to have to redepose him anyway. We're not going to do this today. Not that. It don't make any sense.¶
2 THE COURT: Which one is that?¶
3 4 5 MR. ACKERMAN: Okay. Four A. That also involves another issue. To simplify things at this point --¶
6 THE COURT: Four.¶
7 MR. ACKERMAN: We sent a request to produce.¶
8 It's attached to the motion Exhibit 1.¶
9 10 THE COURT: Again, you're dealing with privilege issues here, as well as other stuff, right?¶
11 12 13 14 15 16 17 18 19 20 21 22 23. 24 25 MR. ACKERMAN: Well, there are a number of objections here that don't raise privilege. Okay. We asked for, I believe, if you go to Paragraph Five of the motion refers to Paragraph Six of the request where we requested fee sharing agreements relating to the case. He has a counterclaim that seeks damages for, among other things, his reputation, interference with professional relationship, loss of value of time, required to be diverted from his professional responsibilities. So we believe the compensation relationship between Mr. and RRA and anything related to the Epstein cases should been produced. His objection to this number six says relevance, not reasonably calculated to lead to discoverable information, and there are no agreements with investors. But we were not asking for investor agreements.¶
1 2 We wanted the agreements between Mr. RRA, and Rothstein.¶
3 THE COURT: It does ask for investor.¶
4 MR. ACKERMAN: Pardon me?¶
5 THE COURT: It says or investor.¶
6 MR. ACKERMAN: Okay.¶
7 8 THE COURT: And/or Any other attorney o ii stor related to any aspect of any plaintiff's case. rt ust --¶
9 10 11 MR. ACKERMAN: Right. So he sayN:1, e doesn't have the investor ones but he hasn't ed the ones between, RRA and Scott Rothgtin¶
12 THE COURT: Okay.¶
13 14 15 MR. ACKERMAN: Number nine, we ask for cost of payment that the Roths rm had against Mr. There's no privile there. Pardon?¶
16 MR. KNIG Ce ) Against Mr. Epstein.¶
17 18 19 20 MR. ACKERMAN: Against Mr. Epstein. I'm sorry, Your Honor. Okay. We felt that that was related to how the cases were being used. We believe that this Ponzi scheme was designed to raise money to fund these cases.¶
21 22 23 24 25 Number ten, we ask for the documents received by you relating to the assertion of a lien by the trustee. Okay. Because that relates to his compensation on the Epstein cases, which is part of the damages of his counterclaim. Because in order to find out what he's been damaged, we¶
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need to know what he was making at the firm at the time and how the compensation formula was set up and what he earned on the various cases.¶
Number 22 is all documents that support your claim for damages. Okay. There is an objection to that that it's not determined. They can't formulate. He says they don't know what the damages are. Okay. So we need to 46.that information.¶
THE COURT: Okay. Yes, sir. CO¶
MR. SCAROLA: Not yet dete is not an objection, it is an answer. The onl ent that was made that relates to relevance to the pending counterclaim is evidence with regard to damages claimed by Mr. Mr. is not claitSz that he lost any income from RRA. RRA has fol . went into bankruptcy. It folded and went into bank ru',Icy as a consequence of Mr. Rothstein's criminal activity. We do not blame Mr. Epstein for the destruction of the law firm and any economic loss that resulted as a consequence of the destruction of the law firm to Mr. . Therefore, that line of inquiry is irrelevant and immaterial.¶
What we have alleged is that Mr. has been, and continues to be, diverted from other income producing activity as a consequence of the prosecution of these spurious claims, whatever they may ultimately wind up¶
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being, but what they have been up until now, as well, including the need to defend against Florida RICCO claims that no longer exist, and civil remedies for criminal activity claims that no longer exist against him, that his attention was diverted from other income producing activities as a consequence of the need to defend against this case. That's got nothing to do with how muc ney he made historically, if anything, from RRA.¶
MR. ACKERMAN: Your Honor.¶
THE COURT: What about the performance is a predictor of fut of - hat past ormance in terms¶
MR. SCAROLA: of the time, that's talking about the lost value e talking about.¶
THE COURC measure his time? derstand that. But how do we¶
MR. SCAROLA: Because he's got a standard hourly As, rate. °¶
AN\ THE COURT: Okay. But, I mean, it's like somebody saying, well, I can no longer detail cars and I make X amount of dollars detailing cars but you've been doing that work for twenty years, can't you find out what you did before.¶
MR. SCAROLA: Well, I don't think that's an accurate analogy. In the case of an attorney, as I think¶
1 2 3 4 5 6 7 B 9 10 11 12 13 it was Lincoln observed, what we have to sell is our time. And there is only a finite amount of that time. Regardless of what Brad may have made from other sources historically or prospectively what he may make in the future, he lost time that could have been devoted to other income producing activity. What probative value does it have to know, for example, that in 2010 Brad Edwards made $5,000 and in 2011 Brad made $20,000, if Brad could have made $25,000 in 2011, if he wasn't obliged in 2011 to be sitting in this courtroom all day today as a consequence of having been sued for purposes of putting him in this courtroom instead of enabling him to make a living.¶
14 15 16 17 18 19 20 21 22 23 24 25 So I don't know how you draw any reasonable inference from that other information. Would it be relevant to know what his standard hourly rate is, yes. Would it be relevant to know how much time he has had to devote to this case, those would be relevant and material inquiries. But how much he made from other sources is so dependant upon factors that are entirely independant of the damages claimed in this case, that they have no relevance and materiality. And, certainly, in conducting a balancing test, when they don't have probative value and we weigh against the absence of probative value the invasion into his economic privacy, I suggest to Your Honor that the¶
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outcome of that balancing test ought to be, I'm sorry, you don't get it at this point. There just isn't enough here for you to get it on the basis that he has told you that what he has lost is his time and the value of his time.¶
MR. ACKERMAN: May I respond?¶
THE COURT: Yes, sir, just one second. But if he couldn't sell his time before, I mean, like you say, I just keep getting back to the fact that if his time was not productive or he couldn't sell his time be re, I don't know what he made with this law firm. lot of money, it may have been not ay have been a don't know. How could we say that's not, at least, calculated' to lead to admissible evidence in this case as compared to what the potential value may be.¶
MR. SC ARC LA. That, Your Honor, would be a relevant question. H4 s ability to productively use his time in the past would be relevant. But Brad is primarily a plaintiff's lawyer. That's principally the work that he doe d has been doing. Your Honor knows that this year's productivity is a consequence, or potentially a consequence, of effort that was made and begun five years earlier.¶
THE COURT: Let me suggest to you, I've had cases where the plaintiff in a personal injury case was a practicing attorney. And they claim as a result of the¶
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injuries sustained in the accident they're unable to work like they were and, therefore, have lost earnings or ability to earn money in the future as a result of the physical limitations, injury or whatever it is. I can't imagine in that kind of case the attorney could come and say, well, you can't find out what I made before this injury because that's not relevant to what my time is worth today.¶
MR. SCAROLA: I absolutely agree with you. In that kind of case, I think that, I think it is a relevant and material inquiry. But let's assume those same set of circumstances and the attorney says I was, as a consequence of my injury -- I'm a lawyer who works on an hourly basis and as a consequence of my injury I missed two weeks of work. Or I work on a salary and I missed two weeks of work and this is how much I get paid and I didn't get paid for that two week period of time. All you get --¶
AC;: 71,ITHE COURT: Wait a minute.¶
KR. ACKERMAN: Your Honor.¶
MR. SCAROLA: All you get in terms of discovery is what you need to know for what the value of that time was. That's all you get. And you don't get to know what he was making five years earlier at a different law firm or what he may be making today because that's not relevant to the loss that he had during that limited period of time.¶
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And that's what we're saying, what Brad has lost is the value of that time that has to have been devoted to this case as a consequence of his having been the victim of an abusive process.¶
MR. ACKERMAN: Your Honor, I've attached the interrogatory answers. We've asked him what the amount of the damages alleged to be, it's in excess of one • They have said emotional distress, mental anguis l hich I'm not sure is a claim that can be brought. BUt he's asked for loss of reputation and stan n the community. Loss of value of time spent in def and in responding to this process. In the counterc e talks about damages to his reputation, interfe Ce th professional relationships, loss of a jue of time. We can't begin to make that evaluation he amount of money that's claimed ) without being able to look into what relationships he had, what fee agreements he had, what money he made so that we can de l ine whether, in fact, he has been damaged by this or'aa_ b (something hrm else that's happened in his life. And one of the ways we can do it is by looking at what his compensation plan was. What agreements he had with the firm. What he had with referral lawyers so we can establish whether there has been, in fact, an interference with these professional relationships and find some way to get to this million dollars which they are claiming and¶
1 2 that we now have to defend. So it is relevant and likely to lead to relevant information.¶
3 4 5 6 THE COURT: Okay. What about the -- I don't know if you mentioned this, Mr. Scarola, the documents evidencing cost and payments of bills and the trustee lien for attorney's fees and costs?¶
7 8 MR. SCAROLA: Couldn't have any relevan all to the pending counterclaim and there is no pe di laim.¶
9 () THE COURT: Okay. ....¶
10 11 12 13 14 15 16 17 18 19 C.) MR. ACKERMAN: Your Honor, t oes to, what, ultimately, there is going to be gs l'S of factors that make up what ' salary was and what he made and where it came from. Okay. And if he didn't actually net money from the cases but it had to go to the trustee, that may affect the calculation and the number. And what we're trying to do is make a determination as to the overall impact on his ability to earn money and anything that relates to what the fee is, what the costs were, or affected his income and his relationships is relevant.¶
20 21 22 23 THE COURT: Okay. What is next? I'll tell you what, I'm going to have to take a short break. You can stretch your legs, as well. Tell me which one is the next one.¶
24 25 MR. ACKERMAN: Hold on a second, Your Honor. I guess the next one would be the protective order relating¶
1 2 3 4 to the deposition of the plaintiff and a motion to compel relating to the plaintiff. And then we have some objections to request to produce that each has lodged against the others.¶
5 MR. SCAROLA: We don't want to redepose¶
6 7 Mr. Epstein until after the new complaint is filed. That can be deferred.¶
B 9 THE COURT: Okay. So which motion yo to hear next?¶
10 MR. ACKERMAN: Hold on a se¶
11 12 THE COURT: You all fi ut and I'll be back in a few minutes.¶
13 MR. SCAROLA: Thank you, sir.¶
14 TAKEN)¶
15 16 17 18 19 20 21 22 THE COURTt, k you. I wasn't back there twiddling my thumiNt--) Unfortunately -- not unfortunately. Fortunately, I'm going on vacation Friday to see my grandchildren. And needless to say it always happens, thet s.111 of these emergency motions that are filed that ha4rto be ruled on by Friday so I was dealing with one of our laws clerks on issues I've never heard before in my thirty-five years practicing law.¶
23 MR. SCAROLA: Law clerk?¶
24 25 THE COURT: We have law clerks. We have to share the law clerks but we have law clerks. Okay. Which one we¶
2 MR. SCAROLA: Three G.¶
3 THE COURT: Three G. Okay.¶
4 5 MR. ACKERMAN: It's really in relation to Three G and H.¶
6 THE COURT: Okay.¶
7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. ACKERMAN: Okay. If I could also ask the Court to flip over to J. Just keep your fingef ere. We /-1" filed -- basically, what had occurred, is at r. Scarola re-noticed Mr. Epstein for deposition EV video deposition on April 13 of this past year. No mmunicated with 4sL Mr. Scarola to find out what the nature of the deposition was going to be about since he had testified extensively already in deposition. Mr. Scarola's response was that he was going to go into inquiry relating to public statements made by the plaintiff regarding his criminal activity, any documents supporting -- he was going to take the position that the plaintiff had waived his Fifth Amendment right. He had taken the position that he had lost his Fifth Amendment rights by operation of law and that was the basis of the deposition. So I sent a request to produce out, which is in J, based on that and received objections to all of those matters. So we filed a motion for protective order based on the grounds that he had already been deposed. That no meaningful grounds had been alleged to¶
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 justify taking another deposition. Particularly, on the grounds that he had waived his Fifth Amendment and we had sought the discovery to find, understand the basis of that so we could understand why we were being, my client was being deposed again. And we had also requested in this motion that it not be a video deposition. And the reason why we were requesting that it not be a video deposition is particularly meaningful in light of the discovery request that this Court is about to rule on where he may be asked several questions of a specific sexual nature that then are placed on videotape on and then goes into the public domain and the prejudice to that is incredible and should not be allowed. So we filed this motion. We advised counsel that unless, we had to have a hearing on this, and that before he could be redeposed on this new information we needed a hearing. So we advised him in advance. Mr. Epstein, we also, I think, had a problem with a date but he did not appear for the deposition so Mr. Scarola has filed a motion to compel and for sanctions not to appear.¶
20 21 22 23 24 25 And so our position, basically, is that the grounds that he sought to depose him on that we were advised was not appropriate. And that we did not, particularly, we had a good faith concern, in light of the discovery that he was attempting to take, of the vast information into prior sexual issues, that those become, be placed on a video¶
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THE COURT: Are you asking me to prohibit the deposition, prohibit the video deposition or prohibit or require him to produce the documents? I'm not sure. Or all of the above?¶
MR. ACKERMAN: If he's going to depose him on the Fifth Amendment, I want the documents that allege that that was, that that was done. I think that's a reasonable request. It's a subject that he's claimed numerous times that that has occurred. And before any deposition occurs on that we want the documents that establish that.¶
Secondly, we felt that he should not be deposed on that, on that issue because all it would do -- I mean, he had already been extensively deposed. And he, Mr. Scarola, needs to come in and establish why he wanted to take his deposition again and that's not in his motion to compel for sanctions. And that needs to be presented to the Court and approved before any sanctions or order compelling is set forth.¶
And third, I can't, the rules allow a video deposition but the Court can make restrictions on how it's used. And our concern in this case, as I articulated before, that if we end up going down this rabbit trail of this, the type of discovery that they have asked for, the sexual nature, and then that is on a video deposition and it can then be¶
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placed on the Internet, we need to have a hearing on that so that the Court can place some restriction on the use of that so there is no unfair prejudice and we can't do that at this point in time. So that was the basis of the motion.¶
THE COURT: Yes, sir.¶
MR. SCAROLA: This was a dually noticed video deposition. Counsel has acknowledged the fact that there were communications about the scheduling of this deposition and what we intended to do. While a motion for protective order was filed on April 8 of 2011, no effort was ever made by the plaintiff to set the motion for protective order for hearing. They just unilaterally chose not to show up. There's a certificate of non-appearance. We had a court reporter present we were there. We were ready to proceed and they simply did not appear.¶
Mr. Epstein has made numerous public statements to reporters. And his denials about having engaged in misconduct with minors have been reported. I want to ask him about those public statements that he has made. I want to know whether the reports of those public statements are accurate or not accurate. I want to know what the denials are based upon. I want to know whether he admits having spoken to these reporters or denies having spoken to them at all. All for purposes of determining¶
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whether there, in fact, has been a waiver of his Fifth Amendment right to remain silent. Because he cannot choose to remain silent when he is deposed but speak to every court reporter who he can get in front of to tell them this is all silly because I really didn't do anything wrong.¶
THE COURT: You said court reporter, I don't think you meant.¶
MR. SCAROLA: I meant reporter, not court reporter, you are correct, Your Honor. Thlc,s, obviously, significant evidentiary va having these depositions recorded on video for purposes of later presentation before a jury. The Florida Rules of Civil Procedure recognize that value. And the concerns that Mr. Ackerman has, if t ed to be addressed at all, certainly, don't e addressed by a prohibition of the videotaping o3::: deposition, which while he 4, appears to be backing off from that now, is what his motion asked for.¶
We are entitled to take a video deposition. As I've told Your Honor, I don't want to do it until after I know what the new allegations are in the new complaint. We didn't have a new complaint as of the time of this request for deposition but I do now want to delay it until such time as the video deposition can be taken to cover all of the issues that are raised in the new complaint.¶
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 But I do want to be able to video it when we take the deposition. the deposition -- MR. ACKERMAN: Your Honor, may I respond? you have requested. MR. SCAROLA: Let me ad at,. Your Honor. THE COURT: And third, whether or not it can be that's done.¶
24 25 MR. SCAROLA: Had this deposition gone forward, as it should have gone forward on April 13, I obviously would not have been obliged to respond to a request to produce in advance of that deposition. And the selection of particular documents for use during the course of the deposition is attorney work-product. I ought not to have to give this party a script of what he is going to be asked about in advance. I don't think I'm obliged to do that. Obviously, I'm not obliged to absent an order of the court, and if the Court did order me to do it, I would do it. But I don't think that I should have to give them a script of¶
THE COURT: Well, I'm not going to rule on when you have to take the deposition. If I allow it, I'm just going to rule as to whether or not you're allowed to take¶
THE COURT: -- in the areas we're talking about. Second, whether or not you have to produce (. i:/ documents¶
by video and, if so, what restrictions I put on any video¶
1 2 what I'm going to be asking about in advance and that's, basically, what they're asking for.¶
3 MR. ACKERMAN: Couple of things, Your Honor.¶
4 5 6 7 8 9 10 11 12 This motion was filed at the time you were basically saying I need to have an all day hearing and we're going to defer any, ruling on discovery and stuff until you get your hands around this case. And so based on the statements the Court made it was set for today and it would have been set in May, if we had reached it in May, but that's why it wasn't noticed because it was my understanding that you were going to, you needed to understand what the issues were before you could --¶
13 14 THE COURT: Let's just deal with the subject of aspect not the procedural.¶
15 16 17 18 19 20 21 MR. ACKERMAN: Okay. Secondly, Mr. Scarola hasn't shown why he needs to be deposed again. He hasn't shown why these matters weren't addressed in the previous deposition. Okay. He has already been extensively deposed already and he hasn't met his burden to show that he's entitled to be deposed again on these issues, at least until --¶
22 23 24 25 THE COURT: I understand the rule to be the opposite of what you just said. I understand the rule to not limit the type, scope of discovery unless it's shown that it's oppressive, burdensome. And that becomes your¶
2 3 MR. ACKERMAN: I don't believe that's the Case, Your Honor.¶
4 5 THE COURT: I thought it states it doesn't limit it unless --¶
6 7 MR. ACKERMAN: But the case law does allow protection --¶
8 THE COURT: True.¶
9 10 MR. ACKERMAN: -- to a party tha deposed. 'ready been¶
11 THE COURT: I agree.¶
12 13 MR. ACKERMAN: And that,Y14CSIy point. He's already been extensively deposed. \¶
14 15 THE COURT: I'm saying the s by different, different wording. guess what I'm saying, maybe¶
16 17 18 19 20 21 22 23 MR. SCAR What has repeatedly been referred to as an extensive deposition is a series of Mr. Epstein reciting a script provided to him by counsel about how he is asserting his Fifth Amendment privilege even though he would like to be able to answer my questions, but. his lawyer has instructed him not to answer my questions and so I'm not going to answer your questions and it goes on for about three paragraphs.¶
24 MR. ACKERMAN: Your Honor.¶
2 MR. ACKERMAN: Your Honor.¶
3 4 5 6 7 8 9 10 11 MR. SCAROLA: It was not an extensive deposition as to the merits of this case. And I have clearly stated why I need to redepose him because I believe he has now waived his right to Fifth Amendment privilege and I want to explore the basis for making that claim. And in addition to which he will have made new assertions for new affirmative relief at some point between now and thirty days from now and I want to ask him a lot of questions about every claim for affirmative relief he's making.¶
12 13 14 15 16 17 MR. ACKERMANi Your Honor, we keep going back to this. If you look at Mr. Epstein's deposition, when he's asked questions about~t use, what I'm going to call the abuse of process c Se 7 answers those. What he has taken the Fifth Amendmentlihmo are all of these sexual matters, which we havet;tended have no bearing on this case.¶
18 19 20 21 22 `*THE COURT: We're not dealing with that right now. 're dealing with the questions that he wants to ask him With regard to the fact that he may or may not have waived his Fifth Amendment privilege just by making public statements or discussing it with third-parties. That's --¶
23 24 25 MR. ACKERMAN: Then I think, then I think he needs to come to this Court and produce the documents to show that that has been waived before we have to undergo a¶
1 2 3 4 5 6 7 8 .deposition about it. He had the opportunity to do it. He hasn't shown that he could have or would have been able to do it before. And at this point in time we've made a request for it. And the Court, I believe, in order to properly protect the parties from someone that's already been deposed is to determine whether, in fact, there is a prima facie basis for a waiver, otherwise, we're going to be arguing about it in the deposition.¶
9 10 11 12 13 14 15 16 17 THE COURT: See, here's part of the rule I'm talking about. It says unless the Court orders otherwise and under subdivision C, which is protecting you against oppressive, et cetera, et cetera. The frequency and use of these is not limited. I always understood you could take ( , ;), deposition as long as not abusing the system or otherwise subject b ective order because you're harassing, whateve ( we e rules says here. I can get you the exact words.¶
18 19 20 21 MR. ACKERMAN: But there is the case law that the Court is aware of where if the party has already been deposed they have to come -- a party seeking to redepose him has to show the basis. Now, he's --¶
22 THE COURT: You got a case that says that?¶
23 24 MR. ACKERMAN: I don't have it with me, Your Honor. I'm relying on my memory.¶
1 2 3. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 what these cases say. I think they say you can protect somebody against burdensome, harassment, oppressive, repetitive discovery. I don't see it says that you can't take more than one deposition. You can take five depositions if you're not going over the line. But, you know, certainly, if you want to give me a case that says that. Okay. Guys, that's going to have to be it because I, unfortunately, have to do a couple of orders back there that I got that man working on. I'll get these orders out by tomorrow for you. And then what I want you to do is contact my JA and I would hope, what I would like to do, and I know you all don't want to do it this way necessarily. I want to get a complaint out there that withstands the motion t miss before we go into all these privilege t 'hi; just want to be able to know what the heck we'rtmde lking about and what the lawsuit is about. Because some of the things you've alleged in my view in the complaint at present may not fall within the area of abuse of process unless can you show me otherwise.¶
20 21 22 23 24 25 MR. ACKERMAN: What I would like to do, Your Honor, because I know the time is late, I would like before our complaint is due, to have a fifteen minute hearing, I don't think it will take longer that than, where I can put to the Court one area where I believe the privilege issue has been waived, and, that is, those documents that we are¶
1 2 3 4 5 6 7 8 9 10 11 12 arguing about here have been produced to a third-party. And I believe that that would then allow us to get the documents that are subject to the privilege and we can use that to prepare our complaint. The Court denies it, we still are on track. But it's very important because they have maintained. We have had six or seven months of litigation over these issues over privilege. You issue a stay to us that we can't go subpoena the trustee and then when they are faced with the choice of having to deal with it in the bankruptcy court they turn over the records that we are under confidentiality agreement with to a third-party without that confidentiality.¶
13 14 15 16 THE COURT: Set your fifteen minute motion and I'll listen to that. But, otherwise, I want the other thing set, as well. Get some time so we can go through this stuff, okay.¶
17 18 19 MR. SCAROLA: And that is not, that is not delaying the thirty day period that they have to file their new complaint; is that correct, Your Honor?¶
20 THE COURT: No.¶
21 22 23 MR. ACKERMAN: I'm just asking it be done before the thirty days so I have an opportunity to, if you agree with me, to get those documents.¶
24 25 THE COURT: You will prepare the orders on the motion to dismiss, on the motion for punitive damages, and¶
MR. ACKERMAN: Yes.¶
THE COURT: I'll do the rest of these.¶
MR. KNIGHT: Enjoy your vacation. Sounds like you need it.¶
THE COURT: Well, yeah. Thank you.¶
(Court adjourned 4:45 p.m.) J4 RY¶
I, Kathleen M. Ames, RPR, Notary Public, State of Florida, was authorized to and did stenographically report the foregoing proceedings; and that the transcript, pages 3 through 157, is a true and accurate record of my stenographic notes.¶
I further certify that I am not a relativ employee, or attorney, or counsel of any o1 th ies' attorney or counsel connected with the '...) on, nor am I financially interested in this act¶
C A e Dated this 15th day o kS' u 2011.¶
•¶
?4;se! e'V i¶
KATHLEEN M. AMES, RPR¶