EFTA00787717

I 1 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA 2 3 4 IN RE: CASE NO. 09-34791-RBR 5 ROTHSTEIN ROSENFELDT ADLER, PA, 6 7 Debtor. 8 9 ECF # 6325, 6326, 6344, 6345, 10 April 13, 2018 11 12 The above-entitled cause came on for hearing 13 before the Honorable RAYMOND B. RAY, one of the Judges in 14 the UNITED STATES BANKRUPTCY COURT, in and for the 15 SOUTHERN DISTRICT OF FLORIDA, at 299 E. Broward Blvd., 16 Fort Lauderdale, Broward County, Florida on April 13, 17 2018, commencing at or about 1:30 p.m., and the following 18 proceedings were had. 19 20 21 22 23 Transcribed from a digital recording by: Cheryl L. Jenkins, RPR, RMR 24 25 OUELLETTE & MAULDIN COURT REPORTERS. INC. EFTA00787717 l' ,,e. 2 1 2 APPEARANCES: 3 4 SEARCY DENNY SCAROLA BARNHART & SHIPLEY, by JACK SCAROLA, Esquire 5 On behalf of Bradley J. Edwards 6 EDWARDS POTTINGER, by 7 BRADLEY J. EDWARDS, Esquire BRITTANY N. HENDERSON, Esquire 8 On behalf of Farmer Jaffe 9 SCOTT LINK, Esquire 10 and RICE PUGATCH ROBINSON STORFER & COHEN, by 11 CHAD P. PUGATCH, Esquire On behalf of Jeffrey Epstein 12 13 CARLTON FIELDS, BY NIALL McLAUCHLAN, Esquire 14 JOSEPH IANNO, Esquire On behalf of Fowler White 15 16 AKERMAN, LLP, by JOAN LEVIT, Esquire 17 On behalf of Michael Goldberg 18 PAUL G. CASSELL, Esquire (via telephone) 19 On behalf of LM, EW and Jane Doe 20 ALSO PRESENT 21 EDWARD BRISCO 22 ECRO - Electronic Court Reporting Operator 23 24 25 OUELLETTE & MAULDIN COURT REPORTERS. INC. EFTA00787718 Page 3 1 ECRO: All rise. 2 THE COURT: Good afternoon. Please be 3 seated. 4 MR. SCAROLA: Good afternoon. 5 MR. EDWARDS: Good afternoon, your Honor. 6 THE COURT: All right. Court calls the 7 matter of Rothstein Rosenfeldt & Adler. May I have 8 appearances for the record? 9 MR. SCAROLA: Good afternoon, your Honor. 10 My name -- excuse me. 11 THE COURT: We have an antiquated sound 12 system in this courtroom. 13 MR. SCAROLA: And I have a booming voice, 14 sir, so I don't think it will be a problem, but my name is 15 Jack Scarola. I am counsel on behalf of Bradley Edwards. 16 Mr. Edwards is here in a dual capacity. He has joined in 17 the motion on behalf of his law firm, Farmer Jaffe, and is 18 also representing Farmer Jaffe. With us also at counsel 19 table is Brittany Henderson, and we are the moving parties 20 in this matter, your Honor. 21 THE COURT: All right. 22 MR. SCAROLA: And I'm just reminded by the 23 sign that I'm supposed to -- I don't need to spell my 24 first and last name. 25 Okay. Thank you. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787719 Page 4 1 THE COURT: Step aside so the other parties 2 can come up to the mic. 3 MR. SCAROLA: Yes, excuse me. 4 MR. EDWARDS: I was just introduced by 5 Mr. Scarola. Brad Edwards on behalf of Farmer Jaffe. 6 MR. McLAUCHLAN: Good afternoon, your Honor. 7 Niall McLauchlan on behalf of Fowler White. I'm here with 8 my partner, Joseph Ianno, at the table, and Ed Brisco, who 9 is a managing partner of Fowler White. He's here because 10 of his obvious concern about the allegations in the 11 motion. 12 MR. PUGATCH: Good afternoon, your Honor. 13 Chad Pugatch, P-u-g-a-t-c-h, here as co-counsel for 14 Jeffrey Epstein, along with Mr. Scott Link, who will 15 introduce himself. 16 MR. LINK: Good morning, Judge. Do you need 17 me to spell -- L-i-n-k, first name is Scott, S-c-o-t-t. 18 Thank you, ma'am. Thank you, Judge. 19 MS. LEVIT: Good afternoon, your Honor. 20 Joan Levit for the liquidating trustee, Michael Goldberg. 21 We are not participating in this 22 disagreement. However, we just wanted -- the liquidating 23 trustee just wanted to state on the record that there is 24 no longer a bankruptcy case, as your Honor is aware. The 25 case has been confirmed, and there is a liquidating trust, OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787720 Page 5 1 which we are resolving, and that this Court is aware that 2 its authority is based on what powers were granted in the 3 liquidating plan. 4 So, we're just monitoring the hearing, and 5 unless your Honor needs us, we're going to be quiet for 6 the rest of the case. 7 THE COURT: Thank you. Thank you. 8 All right. We have three matters on the 9 Court's calendar today, motion for order to show cause and 10 the responses thereto, joinder, filed by interested party 11 Bradley Edwards, motion to intervene, motion for joinder. 12 Turning to the motion to intervene, is 13 Peter Shapiro present in the courtroom? 14 MR. EDWARDS: Your Honor, I was informed 15 that Mr. Paul Cassell was to call into this hearing on 16 behalf of L.M., E.W. and S.R. 17 THE COURT: I don't 18 MR. EDWARDS: I don't know what arrangements 19 he made. 20 THE COURT: No such arrangements were made. 21 So, we'll just -- on the motion to intervene, that will be 22 continued. It won't be heard. 23 MR. EDWARDS: Thank you, your Honor. 24 ECRO: (Inaudible) -- an e-mail. He was 25 right. Let's call CourtCall. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787721 Page 6 1 THE CLERK: Okay. 2 ECRO: Do you want me to print you a 3 calendar that shows his name? 4 THE COURT: Can you print it here? 5 ECRO: I can. 6 (Thereupon, CourtCall was connected.) 7 RECORDING: Thank you for making a 8 telephonic court appearance. Your CourtCall or Court 9 Conference operator will be with you momentarily. 10 OPERATOR: Thank you for standing by. May I 11 have the name of your Court, please? 12 ECRO: U.S. Bankruptcy Court, 13 Judge Raymond B. Ray. 14 OPERATOR: Thank you. One moment and your 15 operator will be right with you. 16 ECRO: Thank you. 17 OPERATOR: Good afternoon. My name is 18 Karina with CourtCall. I'll be assisting you today. 19 ECRO: Thank you. We are ready for the 20 call. 21 OPERATOR: Thank you, ma'am. I'll go ahead 22 and join counsel through. 23 THE COURT: Mr. Cassell, are you on the 24 phone? 25 MR. CASSELL: Yes. Hi, this is OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787722 Page 7 1 Paul Cassell. 2 THE COURT: Spell your last name for the 3 court reporter. 4 MR. CASSELL: Cassell is C-a-s-s-e-1-1. 5 THE COURT: And who are you representing in 6 this matter? 7 MR. CASSELL: I represent putative 8 intervenors L.M., E.W. and Jane Doe, who have a pending 9 motion for leave to intervene. 10 THE COURT: All right. Let me ask, is there 11 any opposition to the motion to intervene? 12 MR. SCAROLA: Not on behalf of the moving 13 party, your Honor. 14 MR. McLAUCHLAN: Judge, we do have some 15 opposition. 16 It appears that E.W. and Jane Doe weren't 17 even clients, weren't even part of the litigation for 18 which the subpoena was issued. So I think the motion to 19 intervene as to those two parties should be denied. The 20 only one, even according to the victim's reply, they say 21 the client refers to L.M. So that's only one of the three 22 putative intervenors. For that reason I think the motion 23 should be denied as to E.W. and Jane Doe. 24 MR. PUGATCH: Your Honor, on behalf of 25 Mr. Epstein, we would join in that objection, that limited OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787723 Page 8 1 objection. 2 THE COURT: Mr. Cassell. 3 MR. CASSELL: Yes. L.M., it appears, has 4 not been contested. With regard to E.W. and Jane Doe, the 5 e-mails in question pertain to all three victims. 6 Therefore, all three victims should be allowed to 7 intervene. 8 Mr. Epstein had an opportunity to file a 9 written response where we could have provided a reply in 10 more detail. He did not do so. Fowler White filed a 11 response, and only dropped a footnote raising a different 12 kind of argument in opposition. So these are new 13 arguments that are being advanced. 14 I think it's quite clear that the victims 15 have significant and compelling interest at stake, and 16 they should be allowed to intervene. 17 THE COURT: Is there any dispute that the 18 e-mails in question refer to L.M. and E.W.? 19 MR. SCAROLA: Your Honor, our position is 20 that the e-mails refer to all three of the putative 21 intervenors. 22 MR. MCLAUCHLAN: And, Judge, just for the 23 record, Fowler White, we haven't seen the CD, so we don't 24 know who is on there, but I do note that Mr. Cassell is 25 technically wrong, because Mr. Epstein, in his response, OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787724 Page 9 1 specifically said on Page 3 of his response, that two of 2 the three intervenors, E.W. and Jane Doe, were not parties 3 during the litigation and the 2010 order. 4 MR. LINK: Your Honor, may I be heard? 5 THE COURT: Yes. 6 MR. LINK: (Inaudible) -- objection. The 7 three -- oh, sorry. 8 Those three intervenors who are seeking to 9 intervene in this Court have been allowed to intervene 10 without objection in the state court proceeding, so that 11 they can protect their attorney/client privileges if such 12 exist. 13 So as far as their being able to protect the 14 e-mails, and whether they're going to be admissible, and 15 whether they're confidential, the state court judge has 16 that issue, and they are participating in that proceeding, 17 Judge. 18 THE COURT: So I'll grant that motion. 19 Mr. Cassell, see to the order. 20 MR. CASSELL: Thank you. 21 THE COURT: All right. Let's describe, 22 before we get started, just what we're talking about. Is 23 it one disk, two disks? Is it boxes of goods? 24 MR. SCAROLA: Your Honor, the --- 25 THE COURT: I just want the record to be OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787725 Page 10 1 clear. 2 MR. SCAROLA: Yes, sir. 3 The origin of the information in dispute, we 4 understand is a single compact disk that contains a very 5 large number of e-mails. 6 THE COURT: And is that the disk that was 7 referred to as -- it was in one of the pleadings, was 8 found in a box? 9 MR. SCAROLA: That's what we have been told, 10 your Honor. We don't have, obviously, direct information 11 of that, but we have been informed that that disk was 12 included in one of 36 boxes that were reviewed by the law 13 firm of Link & Sartory, obtained from the Fowler White law 14 firm, who were predecessor counsel to Mr. Epstein, and 15 were the direct object of this Court's order prohibiting 16 retention of that specific information. 17 MR. LINK: So the record is clear, it's Link 18 & Rockenbach. 19 MR. SCAROLA: Link & Rockenbach, not Link & 20 Sartory, excuse me, old firm name. 21 MR. McLAUCHLAN: Judge, yes, the motion 22 alleges that there was a single -- I'm sorry? 23 ECRO: If you're going to speak from 24 there --- 25 MR. McLAUCHLAN: Judge, the motion refers to OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787726 Pagell 1 the single CD that was supposedly in Fowler White's files, 2 that's correct. There was originally, my understanding 3 is, two CDs that were delivered to Fowler White for 4 printing. Those documents were then put onto one CD, with 5 Bates numbers, and the documents were printed. So we now 6 have a single CD, that's correct. 7 THE COURT: And is the information contained 8 on this disputed CD anywhere else in the state court file? 9 MR. McLAUCHLAN: I'm not aware of the state 10 court file. 11 MR. SCAROLA: Your Honor, the information 12 contained on the compact disk included both privileged and 13 non-privileged information. 14 THE COURT: But it wasn't subject to 15 disclosure, so it didn't go to the special master and 16 privilege log? 17 MR. SCAROLA: If I could, perhaps it would 18 be helpful if I briefly trace the history for the Court. 19 THE COURT: Okay. 20 MR. SCAROLA: Your Honor may recall that the 21 law firm of Rothstein Rosenfeldt & Adler imploded as a 22 consequence of Scott Rothstein's involvement in a massive 23 Ponzi scheme. 24 That firm became the subject of bankruptcy 25 proceedings. A special master was appointed. The special OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787727 Page 12 1 master took control of the records of the law firm, 2 including the law firm's electronic records. At the time 3 that that occurred, litigation was pending between 4 Mr. Epstein and Bradley Edwards. 5 Mr. Epstein issued a subpoena in that state 6 court proceeding seeking information from the electronic 7 files of the bankrupt law firm, and the determination was 8 made that in order to deal with privilege assertions of 9 all of the e-mail records of the law firm, that, over 10 Mr. Edwards' objection, and the objection of the law firm, 11 the electronic documents were to be turned over to Fowler 12 White so that Fowler White could print out a hard copy of 13 Bates stamped, numbered e-mails extracted from those 14 multiple compact disks. 15 This Court entered an order on November 30, 16 2010, recognizing the fact that Fowler White was at that 17 time representing Mr. Epstein, an adversary of Mr. Edwards 18 in the state court proceeding, and that order expressly 19 prohibited Fowler White from retaining any copy, 20 electronic or otherwise, of the information that was 21 turned over to them solely for purposes of performing the 22 administrative task of Bates stamping and printing out 23 copies, one to be delivered to Judge Carney, serving as 24 Special Master on behalf of the bankruptcy trustee, and a 25 second copy to go to the Farmer Jaffe law firm, so that a OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787728 Page 13 1 privilege log could be prepared. All of that related to 2 the subpoena that was issued in the state court 3 proceedings. 4 Your Honor's order reads, in relevant part, 5 Fowler White will not retain any copies of the documents 6 contained on the disks provided to it, nor shall any 7 imagines or copies of said documents be retained in the 8 memory of Fowler White's copiers. 9 Should it be determined that Fowler White or 10 Epstein retained images or copies of the subject documents 11 on its computer or otherwise, the Court retains 12 jurisdiction to award sanctions in favor of Farmer, 13 Brad Edwards, or his client. That order was entered in 14 November of 2010. 15 As far as any of the interested, protected 16 parties, that is Farmer Jaffe, Brad Edwards and his 17 clients were concerned, that order was complied with. 18 We did not learn otherwise until on the eve 19 of the trial of the circuit court case that has been 20 pending since before 2010, just a matter of a few weeks 21 ago. A supplemental exhibit list was filed by the law 22 firm of Link & Rockenbach listing documents on the 23 privilege log that was constructed by the Farmer Jaffe law 24 firm in accordance with this Court's order, listing 25 documents and identifying them by the same Bates stamp OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787729 Page 14 1 numbers that had been placed on those documents by Fowler 2 White. 3 THE COURT: And submitted to the Special 4 Master -- 5 MR. SCAROLA: And sub --- 6 THE COURT: -- and to Farmer Jaffe. 7 MR. SCAROLA: That's correct, sir. One copy 8 went to Farmer Jaffe, one copy went to the Special Master. 9 The --- 10 THE COURT: And apparently one copy was 11 retained. 12 MR. SCAROLA: The electronic records were 13 supposed to have been destroyed. All that was to remain 14 were the hard copies, with the electronic disks having 15 been returned to Farmer Jaffe. 16 So, there should have been no retention of 17 anything by Fowler White. Mr. Link, in representations to 18 the state trial court, after issues were raised with 19 regard to how he came to be in possession of documents 20 that he clearly was not supposed to have, represented to 21 the trial court that he had obtained the disk containing 22 the information that was listed as potential trial 23 exhibits from the Fowler White law firm inside one of 24 36 boxes that he has told the Court he recently obtained 25 possession of from Fowler White. We have no direct OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787730 Page 15 1 knowledge with regard to those matters, but that's what 2 the representation is that has been made. 3 One thing that is absolutely clear, no one, 4 other than Judge Carney and Farmer Jaffe is supposed to 5 have any copy of that privileged material. It was 6 specifically prohibited from being retained by the Fowler 7 White law firm. It contains both attorney work product 8 and attorney/client privileged information, and we are 9 here today to ask your Honor to do five things. 10 We would like a rule to show cause issued so 11 that a determination can be made as to the full 12 circumstances under which this Court's clear and 13 unambiguous order has most obviously been violated. 14 We would like a direction from this Court 15 that Fowler White, Jeffrey Epstein, and Link & Rockenbach 16 will submit to deposition so that sworn testimony with 17 regard to the clear violation of the Court's order can be 18 taken. 19 We would like a final hearing scheduled on 20 the order to show cause. 21 We would like this Court, in the interim, to 22 prohibit any further dissemination of any information 23 derived from that improperly possessed privileged 24 information, and we would like Link & Rockenbach directed 25 to withdraw all filings that have been made in any court OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787731 Page 16 1 referencing the contents of these documents. 2 So those are the five things that we would 3 hope to accomplish. 4 I recognize the fact that at least on the 5 Court's calendar, we were informed this was to be a 6 10-minute hearing. We thank your Honor for allowing us 7 any time on short notice, and we need some guidance from 8 your Honor as to the extent to which you want us to get 9 into any further detail beyond that which I have presented 10 to the Court, and we're fully prepared to do that, but 11 those are the five things we hope to see accomplished, and 12 we hope to see accomplished expeditiously, issuance of the 13 order to show cause, a direction with regard to 14 pre-hearing discovery, the scheduling of a final hearing, 15 a prohibition against further dissemination in violation 16 of this Court's order, and the withdrawal of all 17 references in previously filed documents to this 18 unlawfully possessed information. 19 THE COURT: All right. 20 MR. SCAROLA: And I'm happy to answer any 21 other questions your Honor may have. I hope I have, 22 although I've probably taken more time than you've wanted 23 me to, responded to the inquiry the Court had. 24 THE COURT: No, so Farmer Jaffe and 25 Bradley Edwards want to take the deposition of Fowler OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787732 Page 17 1 White, Epstein and Link? 2 MR. SCAROLA: That's correct, your Honor. 3 MR. LINK: Yes, your Honor. 4 MR. SCAROLA: And with regard -- with regard 5 to Fowler White, it would be the corporate representative 6 with the most knowledge with regard to these matters, the 7 same with regard to Link & Rockenbach, and as far as 8 Jeffrey Epstein is concerned, obviously he was personally 9 prohibited by the express language of the Court's order 10 from possessing or accessing any of this information, and 11 we would certainly want to take Mr. Epstein's deposition. 12 While representations have been made with 13 regard to the extent that Mr. Epstein has been in 14 possession of, or had access to this privileged 15 information, the record is completely devoid of any sworn 16 representation by Mr. Epstein, and clearly that is 17 essential in terms of this Court fashioning, or first of 18 all determining who is responsible for these very serious 19 violations, and in fashioning an appropriate response. 20 Thank you, sir. 21 THE COURT: All right. Response? 22 MR. LINK: Thank you. 23 MR. CASSELL: This is Mr. Cassell, and the 24 intervenors join in all those motions as well. 25 THE COURT: Thank you. OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787733 Page 18 1 MR. LINK: Judge, if I can just respond 2 briefly on behalf of Mr. Epstein. 3 First, notwithstanding what Mr. Scarola 4 said, there is no factual issue. There has never been an 5 allegation that Mr. Epstein has ever had the disk. He's 6 never said it, Fowler White has never said it. He never 7 had the disk. 8 THE COURT: Well, they're going to ask him 9 that question. 10 MR. LINK: I can make that representation to 11 the Court. I can provide a sworn affidavit that he's 12 never had it. He's never had the disk, plain and simple. 13 So, if that's what the Court is interested 14 in, I can represent that to this Court, and I believe 15 Fowler White will stipulate to that, and I don't believe 16 Mr. Scarola has any information or evidence that would 17 suggest Mr. Epstein ever held this disk. So that's point 18 one. 19 Two --- 20 MR. SCAROLA: May I respond? 21 MR. LINK: I did not interrupt you, 22 Mr. Scarola. 23 MR. SCAROLA: I'm sorry. It's not our 24 contention Mr. Epstein has the disk, your Honor. 25 It is our contention that Mr. Epstein has OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787734 Page 19 1 had access to the privileged information contained with-on 2 the disk -- on the disk, and that simply is a distinction 3 without a difference. Whether he received printed copies, 4 whether he received information without getting printed 5 copies really makes no difference. The point of 6 your Honor's order was to prohibit access to privileged 7 information. 8 And I'm sorry to have interrupted, but I 9 think it's important to clarify that point. 10 THE COURT: Proceed, Mr. Link. 11 MR. LINK: Thank you, Judge. 12 So we now all understand that Mr. Epstein 13 never had the disk. 14 The only information Mr. Epstein ever 15 received was from my law firm when I provided him select 16 e-mails when we reviewed the disk, my law firm, in 2018. 17 So Mr. Epstein has not had one piece of 18 paper that they're claiming he shouldn't have, and I want 19 to make sure the Court understands what this disk is. 20 This is not a disk of privileged information. It's a disk 21 of 27,000 pages of which they claim some of them are 22 privileged. They submitted a privilege log, Mr. Scarola 23 said it was for this Court. It wasn't. The privilege log 24 is in Judge Hafele's court, in the 15th Judicial Circuit 25 in Palm Beach County. OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787735 Page 20 1 Judge Hafele had --- 2 THE COURT: Filled with these 27,000 pages? 3 MR. LINK: Pardon me? 4 THE COURT: And that privilege list deals 5 with these 27,000 pages? 6 MR. LINK: It does, sir, and Judge Hafele 7 has before him, as he should, since the privilege list, 8 and the privileged documents, if they are privileged, are 9 going to be presented to him hopefully in camera, that's 10 the motion we have filed. I've asked for it in camera. 11 Mr. Scarola has asked for it in camera in front of the 12 state court judge. 13 Why? Because the only thing that your Honor 14 was involved with related to the cancellation of a 15 hearing, and an agreed order, and I'm going to let Fowler 16 White talk about Fowler White's issues from 2010, but I 17 want to be very clear, so there is no mistake, I never had 18 the disk, my law firm, Link & Rockenbach, until 2018. 19 When we received the disk, which was part of 20 a box delivered by Fowler White, we looked at it. It was 21 sequentially numbered from 1 through 27,000. We looked at 22 about 5,000 of those e-mails, Judge, before we were 23 notified that there was a problem with our having the 24 disk, and then we stopped looking. 25 Of the 5,000 we looked at, your Honor, the OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787736 Page 21 1 vast majority of them had to do with things like, what are 2 you going to do Friday night? Are you going to this 3 concert at the Broward Civic Center? Are you going down 4 to the Marlins game? Where should we go for lunch today? 5 There were 47 documents, 47 that I listed on 6 a supplemental exhibit list and put those in front of 7 Judge Hafele. Those documents are now sealed, the disk is 8 sealed pursuant to Judge Hafele's order. I have had my 9 client and his general counsel remove all reference to the 10 documents that I've e-mailed to them. I have wiped my 11 computers clean of all of the documents. This issue is 12 sitting before Judge Hafele. 13 Mr. Scarola and Mr. Edwards asked the 14 appellate court, we have two appeals pending in the 15 4th DCA, one a writ of mandamus, and one a petition for 16 cert. They asked the appellate court to strike every 17 reference to -- generally that we've made to these 18 documents. Without even requiring us to respond, the 19 appellate court denied their motion. They've asked the 20 appellate court to do what they're asking you to do. 21 And with all due respect, I'm not sure how 22 this Court can tell the 4th DCA what to do with its 23 pleadings, but -- I honestly don't know how that would 24 work. 25 So, Judge what I want to make sure is clear OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787737 Page 22 1 as it relates to Mr. Epstein is this, that this Court 2 understands, he's never had the disk, never. He has never 3 had any of the documents, the 47 that they claim are 4 privileged, that no one has looked at, no in camera yet, 5 we're working on that, I sent him those materials, not 6 Fowler White. He did not get them in 2010. He received 7 them in 2018, and he no longer has them. 8 So, every single thing they're asking for 9 has happened by agreement. We did an agreed order to seal 10 the disk. We did an agreed order to take the disk that we 11 had from Fowler White and it's in a sealed envelope. 12 We've taken that disk and put it with the Clerk of the 13 Court in state court. We have taken all of the exhibits, 14 sealed them, numbered them, pursuant to Judge Hafele's 15 order, and placed them in the Clerk's file. There has 16 been no further dissemination. 17 Until Judge Hafele removes the seal, if he 18 does, those documents are going nowhere. The e-mails are 19 going nowhere. The exhibits are going nowhere. Nobody 20 has them. 21 So, what is the one issue that I think is 22 outstanding for this Court? I think there is only one 23 issue, and I don't know, your Honor, that any discovery 24 from my firm can tell you, or from Mr. Epstein can tell 25 where the disk came from that ended up in Fowler White's OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787738 Page 23 1 box. Only Fowler White can answer that question, if it 2 can be answered. I don't know that they can tell you. It 3 was 2010. Maybe somebody will be able to figure that out 4 and they can address that, but the only issue, the only 5 fact that we all don't know is, why is that disk in a box 6 at Fowler White? 7 Was it inadvertently kept? Was it given to 8 them by the Special Master? I have no idea. I wasn't 9 around here in 2010 doing this work, but I know this, 10 without any hesitation, the 47 e-mails that are sealed and 11 waiting for Judge Hafele to look at are not being 12 disseminated anywhere. The disk that they're concerned 13 about is sealed. There are no copies. It's not going 14 anywhere. The appellate court has told them, no, we're 15 not striking references to it, and they've asked 16 Judge Hafele to do the same thing. He hasn't ruled on it. 17 So, to ask this Court to instruct 18 Judge Hafele what to do in his Chambers, and the 4th DCA 19 what to do in their Chambers, I don't think makes sense, 20 but I do think your Honor has the jurisdiction to look at 21 your order and determine if the simple retention by Fowler 22 White somehow is a violation of that order, and what's the 23 consequence, if any. 24 But to ask my law firm where it got the 25 disk, when they know where we get the disk, I've OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787739 Page 24 1 represented to Mr. Scarola. Mr. Scarola told Judge Hafele 2 he accepted my representation. Maybe he's changed his 3 mind, and he thinks I've teleported back to 2010, but we 4 did not have the disk, your Honor. We've submitted an 5 affidavit, we did not receive the disk until 2018. 6 So what information through discovery I 7 could provide, or my client could provide, who they've 8 admitted didn't have the disk, is beyond me, Judge. 9 THE COURT: Thank you. 10 MR. LINK: Thank you. 11 MR. McLACHLAN: Thank you, Judge. 12 Niall McLachlan for Fowler White. 13 A couple of just points of clarification 14 from Mr. Scarola's presentation, and I think it's -- one 15 of them is probably very obvious to the Court. 16 Mr. Scarola suggested that upon the bankruptcy the Special 17 Master took possession of all of the records of Rothstein. 18 Of course what he meant by that was the bankruptcy 19 trustee. 20 MR. SCAROLA: Yes, I'm sorry, the Special 21 Master had them as an agent of the bankruptcy trustee. 22 THE COURT: Well, the chain of pleadings in 23 the Rothstein main case starts with Docket Entry 617, 672, 24 807, 888, 1068, 1120 and 1194, which is the order . 25 MR. McLACHLAN: That's correct, Judge, and OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787740 Page 25 1 so here is the way it came about, there was litigation 2 pending in the state circuit court in Palm Beach County. 3 Mr. Epstein filed a subpoena from the state court to get 4 copies of the Rothstein records. 5 THE COURT: From Judge Stettin? 6 MR. McLAUCHLAN: No, they filed it -- yes, 7 from Judge Stettin as the trustee, that's correct. 8 THE COURT: The trustee. 9 MR. McLACHLAN: Yes, that's correct. 10 There was a dispute about how that would be 11 done That's when those orders started to be entered. I 12 think the first one is probably the subpoena, and then the 13 orders, which ended up with the order that we're talking 14 about today. 15 Another point of clarification, Mr. Scarola 16 says that the order was entered over Farmer Jaffe's 17 objection. He may have had some -- the law firm may have 18 had some concerns, but it's very clear it's an agreed 19 order. I don't know that that makes a lot of difference 20 to the analysis, but I just want to be very clear, that 21 was an agreed order, that's at 1194. 22 So, that's why the state court is so 23 involved here, because it was a subpoena from that court. 24 That court was ruling on the objections. The only 25 involvement of this Court was you set the protocol by OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787741 Page 26 1 which the documents would be produced by the trustee, and 2 then you entered the order, 1194, that's at issue here 3 today, and that order said Fowler White shall not retain 4 copies. We didn't, we sent them all to Farmer Jaffe in 5 seven banker's boxes on November 10, 2010, and that e-mail 6 is attached to our response. 7 We sent a CD to Farmer Jaffe. We also sent 8 a CD with the Bates numbers to Special Master Carney, who 9 was to review the documents and go over the privilege log. 10 When your Honor indicated -- Mr. Scarola 11 indicated that one copy went to Farmer Jaffe, one copy 12 went to Special Master Carney, and your Honor stated, and 13 one copy was retained. We don't know that. We don't know 14 how the CD was in our files. 15 What's very possible, because our records 16 indicate we didn't keep it. Our records indicate -- well, 17 I told you, that they went to Farmer Jaffe and to Special 18 Master Carney. We have no idea. What's quite possible, 19 and the only way we could ever determine this would be to 20 get access to the CD and have it evaluated by an IT 21 specialist, which I don't think will be necessary for the 22 reasons I'll discuss in a minute. We think it's quite 23 possible either that Special Master Carney, when he 24 finished his work on the case a couple of years later, 25 said, oh, there is a CD, here is a CD that was sent to me OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787742 Page 27 1 by Fowler White, I'm going to return it to Fowler White, 2 and someone at the firm opened it and said, oh, this is 3 Epstein, and just threw it in the box. 4 The other possibility is that Farmer Jaffe, 5 when they printed five boxes of allegedly non-privileged 6 documents and sent them back to us, one of their 7 paralegals may have dropped the box (sic) in the file. 8 What's very, very clear is that from 9 whenever it was received, in 2010, '11, maybe '12, through 10 March of 2018, no one made any reference to the CD, the 11 privileged materials, no one tried to use the CD. It sort 12 of defies belief that Fowler White would have some sort of 13 conspiracy to get a CD, according to the motion at least, 14 to have retained a CD, have just thrown it in the box and 15 then done nothing with it, of course, for eight years, and 16 then all of a sudden when we turn over 36 bankers boxes to 17 the new lawyer, when the client asks for his files, which 18 he was entitled to, they asked, just send all the boxes, 19 and that's what we did. 20 Now, if the disk somehow got back into our 21 file, which apparently it did, we don't know how, assuming 22 it is the disk, but I have no reason to controvert that at 23 this point, it's clear now that we don't have the disk. 24 If it was in our files, we turned over 36 boxes, which 25 included the disk, according to the affidavits filed. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787743 Page 28 1 Okay. So, the facts as they exist now don't 2 justify sanctions, and they don't justify discovery for 3 the following reasons: I've already indicated what our 4 investigation shows happened with the disks, and the 5 e-mails are attached to our response. 6 It's not entirely clear, and of course for a 7 sanctions motion the order needs to be completely 8 unambiguous, it's not entirely clear to me when I read 9 that order that it's -- it certainly doesn't direct us 10 what to do with the CD. It says you don't retain copies, 11 all the copies were sent to Farmer Jaffe. We don't retain 12 images on our copy machine, clearly didn't do that. 13 If we later obtained a CD back, whether 14 that's -- whether that's in violation of the order, I'm 15 not sure. I don't think the order is that particularly 16 clear, but that's not really the main point as to our 17 response. 18 The movants are asking for a finding of 19 civil contempt, criminal contempt, and extensive 20 discovery. 21 Civil concept -- as your Honor probably 22 knows, there are two sources of contempt powers, one is 23 the Court's inherent power to enforce its orders. The 24 other is, where applicable, Section 105(a) of the Code, 25 where necessary to -- necessary and appropriate to enforce OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787744 Page 29 1 provisions of Title 11. 2 Courts have held, and we've cited them in 3 our motion, that Bankruptcy Courts don't have the inherent 4 power to find criminal contempt. 5 Now based on the facts that I just laid out, 6 I don't think there could ever be a basis for it, but this 7 also gets to the discovery point, and even though the 8 11th Circuit in In Re: McClean, they affirm a finding of 9 punitive damages, which are by definition criminal, 10 because it's punishment, as opposed to purely compensatory 11 damages, they did so specifically under Section 105(a), 12 and that Court actually said the powers -- the court's 13 power to find contempt comes under 105(a). 14 I think that was possibly a little 15 over-broad, because other courts have found inherent power 16 to enforce courts' orders, but what's very clear here is 17 that 105(a) can have no application in this case. The 18 movants are not seeking to enforce any provision or rights 19 under Title 11. All of the cases that I found where 20 they're talking about putative sanctions, they're all for 21 violations of the automatic stay, willful violations, for 22 violations of discharge orders, as in In Re: McClean. 23 So, there is that issue. 24 Now, civil contempt, there are two purposes. 25 One, purely compensatory, a flat amount is by definition OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787745 Page 30 1 punitive, and that's criminal contempt. Civil contempt, 2 it only deals with future conduct, not anything that's 3 happened in the past, and what it says is, there are two 4 purposes, to coerce compliance with the order that was 5 allegedly violated. Well, you've heard we sent 36 boxes 6 to Epstein, Epstein's counsel. We don't have the boxes. 7 We don't have a disk. 8 The other is to award fees that were 9 incurred to obtain compliance. There is compliance. Even 10 if there was a violation at some point when we received 11 the disk back, there is no question there is compliance at 12 this point. 13 There is also -- you can get fees for 14 damages as a result, but they haven't proven any damages. 15 There is no damages alleged here. Their motion is 16 interestingly devoid of any allegation of compensatory 17 damages. What they say is they need discovery to 18 determine the amount of their damages, which is kind of a 19 remarkable proposition. If they've been damaged, they 20 know it. They don't need us to prove their damages. I've 21 never heard of that sort of thing in a discovery 22 procedure. 23 The other reason for contempt is they say we 24 want to discover the extent of the complicity, and the 25 appropriate punishment for a violation of this Court's OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787746 Page 3I 1 order. That is by definition in the In Re: McClean case, 2 and countless other 11th Circuit cases, and lower court 3 cases, that's seeking criminal contempt sanctions, which 4 I've already discussed I don't believe are before the 5 Court. 6 So, I don't believe, Fowler White does not 7 believe that discovery is appropriate here. If your Honor 8 finds there is some limited discovery, we've cited the 9 pertinent 11th Circuit cases, and I noticed Mr. Scarola 10 didn't ask for access to Fowler White's computer records, 11 but I want to be very clear, there is no basis for that 12 under 11th Circuit precedent, we've cited in our case, so 13 I don't want, if your Honor says the motion is granted, I 14 don't want Mr. Scarola to say, oh, well, then we get 15 access to Fowler White's computer records. 16 In order to justify that, you would have to 17 they would have to show that they've served discovery 18 on Fowler White, and that they believe Fowler White is 19 destroying the evidence, or hasn't produced evidence. 20 We're certainly nowhere near that point yet. 21 Which gets us to another issue on the 22 requested discovery, if your Honor is inclined to grant 23 any, and that is discovery should be in the normal course, 24 send out a request for production, there is an opportunity 25 to respond, object where necessary, and have the Court OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787747 Page 32 1 rule on objections. There shouldn't just be a carte 2 blanche order saying they get to depose people -- everyone 3 in the possible chain of custody at Fowler White, everyone 4 in the possible chain of custody of Mr. Link's firm, and 5 if your Honor finds there needs to be discovery, either 6 for civil contempt, or if your Honor determines that you 7 can rule on criminal contempt matters, or consider 8 criminal contempt matters, the party that really needs 9 discovery is Fowler White, and here is why: First, if 10 Farmer Jaffe is claiming they've suffered damages, we 11 certainly need discovery about that. Second, we need to 12 look at the CD, the offending CD, we need to have it 13 analyzed by an independent IT specialist, because we want 14 to see if we can determine from that the chain of custody 15 of that CD. 16 If the CD shows that the documents were at 17 any time opened by someone at Farmer Jaffe's firm, that 18 means we got the CD back from them at some point after the 19 production. If the CD shows that the documents were 20 opened at any point by Special Master Carney, that would 21 show that we got the CD back from Special Master Carney 22 sometime after the production. 23 So, I think it's there are a lot of 24 issues here, Judge. I think at this point, given that 25 Fowler White is undoubtedly in compliance, if we were ever OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787748 Page 33 1 out of compliance, we are now in compliance with the 2 order, so we do not believe that there is any basis for 3 sanctions or for discovery, and we respectfully request 4 that the motion just be denied, and we can go back to the 5 circuit court and the judge can deal with the privilege 6 issues there. 7 Thank you, Judge. 8 THE COURT: Mr. Pugatch. 9 MR. PUGATCH: Your Honor, if I may on behalf 10 of Mr. Epstein, we kind of went in reverse order, because 11 Mr. Link got up to address the factual issues that were 12 raised by Mr. Scarola, but I wanted to point out our legal 13 position on behalf of Mr. Epstein, which is actually very 14 simple. 15 This hearing is to establish whether there 16 is a basis to issue an order to show cause. All the other 17 things that flow from what Mr. Scarola asked would only 18 come after the Court determines that there is a basis to 19 issue an order to show cause. 20 As to Mr. Epstein, and I'm speaking only on 21 behalf of Mr. Epstein, you've heard nothing today that 22 would indicate that they've met their burden of a prima 23 facie case. 24 THE COURT: Well, but they want to take his 25 deposition and ask him under oath, did you see the disk? OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787749 Page 34 1 Did you ever see the disk? His answer is going to be very 2 simple, no. 3 MR. PUGATCH: I understand that, Judge, but 4 you've already seen that in the form of the 5 representations of counsel, and an affidavit has been 6 offered. 7 The issue of an order to show cause only 8 comes after they've met their prima facie case, and 9 they're not standing here telling you -- in fact, they've 10 admitted they agree that Mr. Epstein never had the disk. 11 So, if Mr. Epstein's possession of any of 12 these materials only came through Mr. Link and his firm in 13 2018, that's a separate and distinct issue from the issue 14 that they've raised in terms of compliance with the Court 15 order. They've raised nothing to establish a prima facie 16 case that Mr. Epstein violated that order. 17 The other issues that they're raising are 18 all being dealt with in the state court. They don't need 19 to be dealt with in this Court. The issue of the 20 sequestration of the materials, the materials under seal, 21 the not further using, everything that you heard Mr. Link 22 describe, that's being dealt with in the state court. 23 That's what the consequence is of what's happened now, 24 once there has been discovery, that in some manner this 25 material got released, but they haven't met the burden of OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787750 Page 35 1 showing there is a basis to issue an order to show cause 2 against Mr. Epstein, and that is a requirement before we 3 go to step two, to phase two of this whole proceeding, and 4 we speak only on behalf of Mr. Epstein. 5 Excuse me, Judge. 6 MR. LINK: Can I have one moment to confer? 7 THE COURT: Yes. 8 MR. PUGATCH: The last point, Judge, would 9 be if your determination today is that it's going to go 10 forward in any form, or that there is going to be 11 discovery, the discovery should be limited to strictly 12 that one issue, and no other issue, which is, did you have 13 a copy of the disk or not. 14 THE COURT: Or have knowledge of it. 15 MR. PUGATCH: Or have knowledge of it. 16 THE COURT: All right. Thank you. 17 MR. PUGATCH: Thank you. 18 MR. EDWARDS: Your Honor, Brad Edwards on 19 behalf of Farmer Jaffe. 20 I want to just briefly dispel some of the 21 in-clarity that's in the record right now. First is that 22 a privilege log was not filed in this case. The privilege 23 log was filed in this case, as well as the state court 24 case. There has been a representation made that 25 Mr. Epstein did not possess the disk, and I think that OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787751 Page 36 1 we're playing semantics here. 2 THE COURT: Well, I'm going to allow the 3 deposition of Epstein, as to knowledge about the disk, or 4 possession about the disk, very limited. 5 MR. EDWARDS: Only about the subject of the 6 disk, including dissemination to others, what he read from 7 the disk, things of that nature, pertaining to the 8 information on the disk, that's the only subject matter 9 that we want to inquire about. 10 MR. LINK: I think counsel is talking about 11 the information I provided my client, which we know about, 12 and has nothing to do with this Court's order. 13 So, I thought your Honor was focused on 14 whether Mr. Epstein, during the time period that Fowler 15 White had the disk, before it was given to me, knew the 16 disk existed, touched the disk, saw the disk, because I 17 have represented to the state court and to this Court in 18 my papers that once I received the disk, and we looked at 19 it, we identified 47 exhibits, which we filed in the state 20 court, and I showed those to my client. I don't know what 21 the factual issue is, Judge. I thought the Court was 22 focused on the original disk that Fowler White had in its 23 possession, and whether Mr. Epstein was aware they had it, 24 or if he ever had a copy of it, not what he's done in my 25 case. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787752 Page 37 1 THE COURT: Response. 2 MR. EDWARDS: What has happened here is 3 exactly what Farmer Jaffe knew was going to happen in 4 2010, and voiced repeatedly to the Special Master, when it 5 was determined that Fowler White, on behalf of 6 Jeffry Epstein, was going to be able to in-house copy this 7 material and not keep any copies. 8 The only thing that gave Farmer Jaffe any 9 confidence whatsoever that Jeffrey Epstein would not 10 retain, disseminate, review and later use to his 11 litigation advantage the privileged materials on this disk 12 was this order right here. The order of November 30th, 13 2010 was not only intended to preclude retention, that's 14 where the problem begins. What we were really trying to 15 preclude was reviewing and using the materials. 16 So, in 2010, when Fowler White --- 17 THE COURT: Your law firm prepared the 18 order, and the order doesn't say that. 19 MR. EDWARDS: Well, the order, the order 20 does say --- 21 THE COURT: It says should not retain any 22 imagines or copies of said documents. 23 UNIDENTIFIED: Or otherwise, on it's 24 computer or otherwise. 25 MR. EDWARDS: Right, Fowler White will not OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787753 Page 38 1 retain any copies of the documents contained on the disk 2 provided to it, nor any images or copies of said documents 3 be retained in the memory of Fowler White's copiers. 4 THE COURT: Well, I'm going to allow the 5 deposition of the representative of Fowler White, to 6 explain under oath, to answer the question, did they 7 retain any copies in the computers. Obviously they're 8 going to tell me the answer is no, and do they have any 9 independent knowledge of how the disk got in the box. 10 MR. EDWARDS: What we do know, though, that 11 has happened, and what we're trying to determine is the 12 scope and the breadth of what has happened, is that Fowler 13 White, through transferring their boxes, has transferred 14 this disk, along with all of the privileged information to 15 Mr. Link, who has disseminated it to others, and he has 16 represented on the record in the state court that he's 17 disseminated --- 18 THE COURT: It may show the facts, may show 19 that Fowler White did not knowingly transmit the disk. 20 They didn't -- they may -- their testimony may be that 21 they had no knowledge. 22 MR. EDWARDS: It may be, and may be, and 23 maybe there is one sanction for an inadvertent 24 transmission, and another for an intentional transmission. 25 Regardless, once Mr. Link came into the possession of OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787754 Page 39 1 this, as an agent for Mr. Epstein recently, he still put 2 into the record summaries of this material that was 3 improperly obtained. 4 THE COURT: That's been all disclosed to the 5 state court judge. 6 MR. EDWARDS: That has all been disclosed, 7 which is the problem. I mean, this is the use of these 8 materials that never should have come into possession of 9 anyone. 10 THE COURT: From what I understand it's been 11 sealed by the state court. 12 MR. LINK: It has, your Honor. 13 MR. EDWARDS: It's been sealed. 14 MR. LINK: So --- 15 MR. EDWARDS: It's been sealed, yes. The 16 representation was made on the record by Mr. Link that he 17 provided it within his law firm and his client, that being 18 Mr. Epstein. When further asked by the court, has 19 Mr. Epstein been provided with copies of the documents, or 20 the contents of these privileged documents? Mr. Link 21 replied, I just said my client, my law firm and my client, 22 and I can say legal counsel, Mr. Goldberger. So, that's 23 it. 24 So we now know that this information that 25 was improperly obtained was disseminated not only to OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787755 Page 40 1 Mr. Epstein, the adversary who now has this information, 2 it was also --- 3 THE COURT: Take that up in the state court. 4 MR. EDWARDS: That's in the state court, but 5 your Honor reserved jurisdiction to accord the right 6 sanctions for the violation, the violation being the 7 retention and all the consequential damages that stemmed 8 from that initial improper retention. 9 THE COURT: Ten years and nothing. 10 MR. EDWARDS: We don't know. I mean, we 11 just don't know what Fowler White did with it for seven 12 years, whether Jeffrey Epstein has actually had it for 13 seven years. 14 THE COURT: Well, you can ask Epstein that. 15 MR. EDWARDS: Okay. I agree. 16 MR. LINK: I've got (inaudible) -- if that's 17 what the Judge, if you're ordering, that's what --- 18 THE COURT: Well, I'm going to take the 19 order to show cause under advisement. 20 MR. LINK: Right. 21 THE COURT: I'm going to authorize the 22 deposition of the representative of Fowler White, and of 23 Epstein, individually, limited as I've indicated on the 24 record. 25 MR. LINK: Very good, thank you. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787756 Page 4 1 1 THE COURT: Mr. Pugatch, you draft that 2 order. 3 MR. PUGATCH: Will do, Judge. 4 THE COURT: Run it by counsel. 5 MR. SCAROLA: Thank you for your time today. 6 THE COURT: Hold it. I'm not done. 7 MR. SCAROLA: Oh, I'm sorry. 8 MR. LINK: Thank you, your Honor. 9 THE COURT: We're going to continue to take 10 the order under advisement -- the order to show cause to a 11 later date. I'll set it for a hearing. I'll make a 12 determination as to whether or not, once discovery is 13 done, let me -- there were my other notes. 14 Oh, what is the alleged damages and claims 15 of the parties, what sanctions are they seeking? 16 MR. EDWARDS: Should I speak -- Brad Edwards 17 on behalf of Farmer Jaffe. 18 THE COURT: Well, no, just do a statement 19 and file it -- 20 MR. EDWARDS: Okay. 21 THE COURT: -- so it's of record. The same 22 with the other party, Mr. Cassell. 23 MR. CASSELL: Yes, your Honor, we have that 24 in Docket Entry 6345, we join in the request from Farmer 25 Jaffe, and we have seven independent requests for the OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787757 Page 42 1 victims, including damages. We would also like to be -- 2 during the deposition we would like to be able to ask 3 Epstein questions, including questions about who he has 4 distributed these documents to. 5 This involves a childhood sexual abuse case, 6 and so if he's disseminating -- 7 THE COURT: No, you're not going to -- 8 MR. CASSELL: -- information about that --- 9 THE COURT: -- depose Epstein on state court 10 issues. You're going to be -- he's going to be limited in 11 his testimony to if he had knowledge of the disk prior to 12 it being disseminated -- 13 UNIDENTIFIED: To Mr. Link. 14 THE COURT: -- to Mr. Link. 15 MR. LINK: Your Honor, may I ask that maybe 16 one attorney on behalf of the movant, but not -- oh, I'm 17 sorry, I'll come over here. 18 Your Honor, may I ask two things? Is it 19 okay if I -- I didn't mean to interrupt you. 20 THE COURT: Go ahead. 21 MR. LINK: One, might I ask that since we 22 have limited -- 23 THE CLERK: Stand by a mic. 24 MR. LINK: -- questions you're going to 25 allow Mr. Epstein to be asked, that one lawyer on behalf OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787758 Page 43 1 of the movant ask them, and second, if you're going to 2 allow Fowler White to do what it wants, which is to have 3 somebody look at the disk, it has been sealed by the state 4 court. 5 THE COURT: No, I didn't say that. 6 MR. LINK: Okay. I just wanted to make sure 7 that --- 8 THE COURT: I said I'm going to -- they can 9 ask -- their designated representative can be asked if he 10 had any knowledge of the disk. 11 MR. LINK: Very good. Thank you, Judge. 12 MR. SCAROLA: Your Honor, may I request a 13 clarification of the Court's order? 14 I want to be sure that we are clear with 15 regard to the scope of the inquiry that we're permitted to 16 conduct, particularly with regard to Mr. Epstein. 17 THE COURT: Yes. 18 MR. SCAROLA: Thank you, sir. 19 Your Honor has made repeated reference to 20 being permitted to inquire of Mr. Epstein about his 21 possession of the disk. 22 Your Honor's order related not only to the 23 electronic documents, but related as well to any copies of 24 the documents that were made. 25 Mr. Link has made it clear in his OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787759 Page 44 1 representations to your Honor today, and he has stated 2 previously that he sent copies of the privileged documents 3 to Mr. Epstein. 4 Mr. Epstein, we know, retained those 5 documents, and retention of those documents is a clear 6 violation of your Honor's order. 7 What we would like to be able to inquire 8 about, in addition to whether Mr. Epstein had possession 9 of the disk, is whether Mr. Epstein had possession of 10 copies of any of the information obtained from that disk, 11 including the e-mail 12 THE COURT: But the disk wasn't discovered 13 until Link found it in the 36 boxes. 14 MR. LINK: Correct, your Honor. 15 MR. SCAROLA: Well, yes, sir, that's what 16 has been represented to the Court, but what Mr. Link has 17 said is that he transferred that information to 18 Mr. Epstein. 19 THE COURT: After he found it. 20 MR. SCAROLA: Well, he obviously couldn't 21 transfer it before. 22 THE COURT: But that's what you're 23 litigating in state court. 24 MR. SCAROLA: No, sir, I'm sorry, that's not 25 what we're litigating in state court. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787760 Page 45 1 What we are litigating in state court is the 2 malicious prosecution claim. What we want to be able to 3 litigate before your Honor is violation of this Court's 4 order, and retention of documents obtained from that disk 5 is a clear violation of your Honor's order. 6 THE COURT: I disagree with you. 7 MR. SCAROLA: May I refer the Court to 8 specific language in that regard? 9 Your Honor stated, and I quote, should it be 10 determined that Fowler White or Epstein retained images or 11 copies of the subject documents on its computer, or 12 otherwise, the Court retains jurisdiction to award 13 sanctions. 14 So, if Mr. Epstein has retained copies --- 15 THE COURT: Eight years later 16 MR. SCAROLA: Yes, sir. Yes, sir. 17 THE COURT: -- from his lawyer 18 MR. SCAROLA: That is correct, sir. 19 THE COURT: -- who discovered --- 20 MR. SCAROLA: That is correct, no matter 21 when it occurs, it's a violation of this Court's order. 22 THE COURT: Take that up in your state court 23 litigation. 24 MR. SCAROLA: So, just so that I'm sure, 25 your Honor is prohibiting --- OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787761 l'a2c 46 1 THE COURT: I'm going to do the order 2 authorizing the depositions. 3 MR. SCAROLA: All right. Thank you, sir. 4 MR. EDWARDS: Judge, thank you. 5 THE COURT: All right. Now, I want -- 6 Mr. Cassell and Mr. Edwards, so that it's understood, I 7 want an individual statement filed setting forth your 8 alleged damages and what you're seeking. 9 MR. EDWARDS: On behalf of all three? 10 THE COURT: Yes. 11 MR. EDWARDS: Yes, your Honor. 12 MR. PUGATCH: So, Judge, will your order 13 MR. CASSELL: Yes, your Honor. 14 MR. PUGATCH: -- be the entire order then, 15 that you asked -- 16 THE COURT: Well --- 17 MR. PUGATCH: -- me to prepare, or do you 18 still want me to do an order that continues the order to 19 show cause hearing, or are you going to wrap it all up in 20 one order? 21 THE CLERK: All one order. 22 MR. PUGATCH: Okay. 23 THE COURT: We'll do a 24 THE CLERK: With a nice little bow. 25 THE COURT: We'll do it in one order. OUELLETTE & MAULDIN COURT REPORTERS. INC. EFTA00787762 Page 47 1 All right. That concludes today's hearing. 2 MR. PUGATCH: Thank you. 3 MR. LINK: Your Honor --- 4 MR. SCAROLA: Can we have a timeframe with 5 regard to Mr. Epstein's appearance, your Honor? 6 THE COURT: It will be in the order. 7 MR. SCAROLA: Thank you very much, sir. 8 MR. LINK: Thank you very much, Judge. 9 Your Honor, may I ask one more thing -- 10 THE COURT: Wait, wait, wait, wait, wait, 11 wait. 12 MR. LINK: -- before we depart? 13 THE CLERK: 6345. 14 THE COURT: 6345, motion for joinder, that's 15 going to be granted, 6345 is granted, Cassell will see to 16 that order, as he will on 6344. 17 OPERATOR: Pardon the interruption, 18 your Honor --- 19 MR. LINK: Your Honor, may I ask one 20 question? 21 THE COURT: Hang on for a minute. Let me 22 make sure I've got everything. 23 OPERATOR: I'm sorry, pardon the 24 interruption, your Honor. It looks like Mr. Cassell has 25 disconnected. I'll go ahead and redial back out to him, OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787763 Page 48 1 okay? Would you like me to re-connect him? 2 THE CLERK: We'll call --- 3 THE COURT: We'll call him. 4 THE CLERK: CourtCall, that won't be 5 necessary. I'll call the attorney myself. 6 Thank you. 7 OPERATOR: Thank you very much, Madam Clerk. 8 THE COURT: All right. That concludes --- 9 MR. LINK: May I, your Honor? 10 THE COURT: Yes. 11 MR. LINK: I was just going to ask for -- 12 since Mr. Epstein's deposition is so narrow and limited by 13 this Court's order, may he appear by phone? He's in New 14 York City, your Honor, or sometimes not in the country. 15 MR. SCAROLA: We would request an 16 opportunity to depose Mr. Epstein in person, your Honor. 17 Mr. Epstein is a self-acknowledged billionaire. He 18 maintains a home in Palm Beach County, Florida. 19 THE COURT: The deposition will take place 20 in the Southern District of Florida. 21 MR. SCAROLA: Thank you very much, sir. 22 MR. EDWARDS: Thank you, your Honor. 23 MR. PUGATCH: Thank you, Judge. 24 MR. SCAROLA: Your Honor, thank you for your 25 time today. OUELLETTE & MAULDIN COURT REPORTERS, INC. EFTA00787764 Page 49 1 THE COURT: Thank you. 2 MR. LINK: Thank you very much, your Honor. 3 UNIDENTIFIED: Thank you for your time. 4 THE COURT: Let's keep all this together. 5 THE CLERK: CourtCall, we will disconnect. 6 7 8 9 (Thereupon, the hearing was concluded.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 OUELLETTE & NIAULDIN COURT REPORTERS, INC. EFTA00787765 Pane 50 1 2 3 CERTIFICATION 4 5 STATE OF FLORIDA 6 COUNTY OF MIAMI-DADE : 7 8 I, Cheryl L. Jenkins, RPR, RMR, Shorthand 9 Reporter and Notary Public in and for the State of Florida 10 at Large, do hereby certify that the foregoing proceedings 11 were transcribed by me from a digital recording held on 12 the date and from the place as stated in the caption 13 hereto on Page 1 to the best of my ability. 14 WITNESS my hand this 18th day of 15 April, 2018. 16 17 18 19 CHERYL L. JENKINS, RPR, RMR 20 Court Reporter and Notary Public in and for the State of Florida at Large 21 Commission #GG 138863 December 27, 2021 22 23 24 25 OUELLETTE & MAULDIN COURT REPORTERS. INC. EFTA00787766