EFTA00788035

Peer 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 #6421, 6440, 6455, 6456, 6457 10 September 27, 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 September 27, 17 2018, commencing at or about 10:00 a.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. (305) 358-8875 EFTA00788035 Rwc 2 1 2 APPEARANCES: 3 4 SEARCY DENNY SCAROLA BARNHART & SHIPLEY, by DAVID VITALE, Esquire 5 On behalf of Bradley J. Edwards 6 LINK & ROCKENBACH, by 7 SCOTT LINK, Esquire and 8 RICE PUGATCH ROBINSON STORFER & COHEN, by CHAD P. PUGATCH, Esquire 9 On behalf of Jeffrey Epstein 10 CARLTON FIELDS, BY 11 NIALL McLACHLAN, Esquire On behalf of Fowler White Barnett, P.A. 12 13 PAUL G. CASSELL, Esquire (via telephone) On behalf of L.M., E.W. and Jane Doe 14 15 EDWARDS POTTINGER, by BRITTANY HENDERSON, Esquire 16 On behalf of Farmer Jaffe Weissing 17 ALSO PRESENT 18 19 ECRO - Electronic Court Reporting Operator 20 21 22 23 24 25 OUELLETTE & MAULDIN COURT REPORTERS. INC. (305) 358-8875 EFTA00788036 Page 3 1 THE COURT: Rothstein Rosenfeldt & Adler. 2 MR. McLACHLAN: Good morning, your Honor. 3 Niall McLachlan from Carlton Fields on behalf of Fowler 4 White Barnett. 5 MR. PUGATCH: Good morning, your Honor. 6 Chad Pugatch, P-u-g-a-t-c-h, on behalf of Jeffrey Epstein. 7 Co-counsel, Scott Link -- 8 MR. LINK: Over here. 9 MR. PUGATCH: -- is here with me, L-i-n-k. 10 MR. LINK: Good morning, Judge. 11 THE COURT: Good morning. 12 MR. VITALE: Good morning, your Honor. 13 David Vitale, V, as in Victor, i-t-a-l-e, on behalf of 14 Mr. Edwards. 15 MS. HENDERSON: Good morning, your Honor. 16 Brittany Henderson on behalf of Farmer Jaffe Weissing. 17 MR. CASSELL: Good morning, your Honor. 18 This is Paul Cassell, C-a-s-s-e-1-1, appearing by phone 19 for intervenors L.M., E.W. and Jane Doe. 20 THE COURT: And, Ms. Henderson, you're 21 representing who? 22 MS. HENDERSON: Farmer Jaffe Weissing, 23 your Honor. 24 THE COURT: All right. Mr. McLachlan. 25 MR. McLACHLAN: Yes, thank you, Judge, and OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788037 Page 4 1 just for the court reporter, my last name is 2 M-c-L-a-c-h-1-a-n. I omitted that earlier. 3 Judge, we have several matters on the 4 calendar this morning. We have the continued hearing on 5 Fowler White's motion for protective order, that's Docket 6 Entry 6421. 7 You may recall we had a hearing earlier, and 8 the Court indicated that it would give, it would give 9 Mr. Edwards time to file a response. He filed that 10 response at 6437, and Fowler White filed a reply at 6443. 11 We also have a couple motions by 12 Mr. Epstein, but the other motion of Fowler White, apart 13 from the ones of Mr. Epstein, that Fowler White joined, is 14 Fowler White's motion for order bifurcating proceedings, 15 which is Docket Entry Number 6455, to which most of the 16 parties have re -- or I think all of the parties have 17 responded. 18 I'm not sure which order you'd like to take 19 these in. The motion for protective order actually 20 relates to documents they're seeking, I think, for 21 really for liability purposes. So we probably need to 22 address that regardless of how your Honor rules on the 23 bifurcation motion, but however you want -- whatever order 24 you prefer, Judge. 25 THE COURT: Well, I think if we try the OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788038 Page 5 1 motion to strike first, that will determine who will be 2 involved in the proceeding. 3 MR. McLACHLAN: Correct, yes, Judge. 4 THE COURT: Then we'll deal with the motion 5 to bifurcate as to liability and as to damages, and then 6 we'll get into the discovery issues and damages. So we'll 7 deal with bifurcation first. 8 MR. McLACHLAN: With bifurcation first? 9 THE COURT: I'm sorry, no, no, with the 10 motion to strike. 11 MR. McLACHLAN: Very good. Thank you, 12 Judge. 13 MR. PUGATCH: Good morning, your Honor. 14 Again, Chad Pugatch, as co-counsel for Jeffrey Epstein. 15 Judge, it's our motion to strike. This is 16 directed toward the intervenors, and it's directed toward 17 their standing to proceed in this matter, other than that 18 you've entered an order allowing them to intervene with 19 regard to the issue of liability and the issue of the 20 documents, but this is directed to their ability to seek 21 damages, and to make it clear, there are three 22 intervenors, there is L.W., and then there are two others, 23 it's E.R. and Jane Doe, and --- 24 THE COURT: E.R.? 25 MR. PUGATCH: E.W., I'm sorry, E.W. and OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788039 Page 6 1 Jane Doe. Those two were not parties to the original 2 motion that led to your November 2010 order, they were not 3 parties to the order. 4 THE COURT: Well, let me stop you there for 5 a minute. Give me some background data. 6 Did E.W. and Jane Doe have pending state 7 court litigation against Epstein? 8 MR. PUGATCH: That Mr. Link would have to 9 answer. 10 MR. LINK: At which time, your Honor? Back 11 when the agreed order was entered? 12 THE COURT: Any time. 13 MR. LINK: They did, yes, sir. 14 THE COURT: So they've had a trial and 15 they've had an adjudication? 16 MR. LINK: Those cases were settled in June 17 or July of 2010, over eight years ago. 18 THE COURT: About the same time this 19 discovery was going down? 20 MR. LINK: Yes, sir, your Honor. Those 21 cases were fully resolved and -- and, I'm sorry, for the 22 court reporter, Scott Link, L-i-n-k. 23 ECRO: Make sure your microphone is on. 24 MR. LINK: Oh, I'm sorry, no. 25 MR. PUGATCH: It's on. I see the --- OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788040 Page 7 1 MR. LINK: I have a green light. 2 MR. PUGATCH: The light is on. 3 MR. LINK: It may not be plugged in. 4 Your Honor, may I approach? 5 THE COURT: Yes. 6 MR. LINK: I'm sorry about that, madam court 7 reporter. 8 Is that better? 9 ECRO: (No verbal response.) 10 MR. LINK: Great. 11 Your Honor, for the -- from a procedural 12 standpoint, all three of the intervenors' claims were 13 resolved by settlement and the exchange of releases. 14 There are no pending claims, and there have not been for 15 over eight years by the three folks that have intervened 16 in this case. 17 THE COURT: But Epstein brought a cause of 18 action against Edwards? 19 MR. LINK: Yes, sir. 20 THE COURT: What happened to that? 21 MR. LINK: So, that action was dismissed in 22 2012. Mr. Epstein still has a pending action against 23 Mr. Rothstein, but the action against Mr. Edwards was 24 dismissed in 2012, and Mr. Edwards filed a 25 THE COURT: As a claim in the Rothstein OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788041 Page 8 1 bankruptcy? 2 MR. LINK: No, sir. 3 THE COURT: A claim against Mr. Rothstein 4 individually? 5 MR. LINK: Individually, yes, sir, in the 6 state court, Palm Beach County, and in that action 7 Mr. Edwards has pending today a claim against Mr. Epstein 8 for malicious prosecution. 9 THE COURT: So, the pending litigation right 10 now is Edwards against Epstein for malicious prosecution? 11 MR. LINK: That's one, and the second is 12 Epstein against Rothstein. 13 THE COURT: But Rothstein is in prison for 14 50 years. 15 MR. LINK: Yes, he is. 16 THE COURT: And has -- 17 MR. LINK: There may not --- 18 THE COURT: -- incredible judgments against 19 him? 20 MR. LINK: Probably not collectible, 21 your Honor, but the case is still pending. 22 THE COURT: Well, it's going to be pending 23 for 50 years because Judge Cohn, when they moved to vacate 24 the sentence, said no. So apparently he's going to do his 25 full term. OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788042 Page 9 1 MR. LINK: I believe he is, yes, sir. 2 THE COURT: So the only litigation that's 3 actually pending -- 4 MR. LINK: The actual --- 5 THE COURT: -- is Edwards versus Epstein for 6 malicious prosecution? 7 MR. LINK: Yes, sir, and that is set on 8 Judge Hafele, the state court's trial docket -- 9 December 4th or 10th? December 4th, specially set. 10 THE COURT: So at the time the -- what was 11 it, 26 boxes of documents? 12 MR. LINK: Roughly, yes, sir. 13 THE COURT: (Inaudible) filed in 2010. The 14 law firm withdrew in 2012? 15 MR. LINK: Correct, that's right. 16 THE COURT: And they boxed the records, and 17 they sat there for six or eight years? 18 MR. LINK: Yes, sir, until they were 19 delivered to my office in 2018, this year. 20 THE COURT: And then when you got the 21 records, you found the disk, and attached it to some 22 discovery or exhibits, and it was brought to everyone's 23 attention. 24 MR. LINK: That's exactly right, Judge, 25 that's the chronology, yes, sir. OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788043 Page 10 1 THE COURT: All right. Mr. Pugatch, I 2 didn't mean to cut you off. 3 MR. PUGATCH: That's okay, Judge. 4 THE COURT: I wanted to make the record 5 clear. 6 MR. PUGATCH: I absolutely wanted it to be 7 clear, and there is no way that I could clarify it, as 8 Mr. Link just did. So --- 9 THE COURT: Thank you, Mr. Link. 10 MR. PUGATCH: Okay. 11 MR. LINK: You're welcome, your Honor. 12 MR. PUGATCH: So, we come back to why we're 13 here in Bankruptcy Court, Judge. We're here in Bankruptcy 14 Court because they brought a petition for order to show 15 cause why there should not be contempt and sanctions 16 against Jeffrey Epstein and Fowler White, and that is 17 based upon the allegation that your November 2010 order, 18 which ordered that these, that these records be -- and the 19 disk be not copied, and not be disseminated to anyone, 20 that that order was allegedly violated. 21 Now, in order to claim those rights, and to 22 claim damages flowing from, or sanctions flowing from 23 that, these parties need to be parties to your order, or 24 covered by the order, and clearly if you look at the 25 motion and you go back to your order, the only party that OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788044 Pale n 1 was covered in that was L.M., and of course Mr. Edwards 2 and the firm. 3 E.W. and Jane Doe were not parties to the 4 motion. They were not parties to the order. They're not 5 covered by the order. 6 Mr. Cassell moved to intervene on their 7 behalf. You allowed that intervention, we believe because 8 in the state court action there is this companion issue of 9 the attorney/client privilege related to these documents, 10 and so the issue --- 11 THE COURT: That's before the state court 12 judge. 13 MR. PUGATCH: It's before the state court 14 judge. 15 THE COURT: The intervenors have been 16 allowed to intervene in that state court proceeding -- 17 MR. PUGATCH: Yes, that's my understanding. 18 THE COURT: -- and they are being heard? 19 MR. PUGATCH: That's correct. 20 MR. LINK: That is correct, your Honor. 21 They're --- 22 THE COURT: And that judge has the documents 23 under his control. There is apparently a special master. 24 MR. LINK: It's not a special master. 25 Judge Hafele is doing it himself. OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788045 Page 12 1 THE COURT: So he's got both hands on? 2 MR. LINK: He's got both hands on. 3 THE COURT: All right. Continue. 4 MR. LINK: So the record is clear, the three 5 intervenors intervened in the state court action, not as 6 parties to the litigation, but for the limited purpose of 7 asserting an attorney/client privilege. 8 THE COURT: Which he has yet to rule on. 9 MR. LINK: Which he has not ruled on, that's 10 correct, Judge. 11 THE COURT: All right. 12 MR. PUGATCH: So, Judge, the simple issue 13 here is how can these parties, E.W. and Jane Doe, seek to 14 be covered by sanctions or damages for violation of an 15 order when they were not parties to the order? Plain and 16 simple. 17 So, we've asked that the order be entered 18 striking their standing to participate on that basis. 19 As you pointed out in suggesting this motion 20 be heard first, that would substantially limit the playing 21 field as to who can complain, and we can move on to the 22 other motions based upon that. 23 THE COURT: Well, I've read the two motions, 24 Docket Entry 6456, 6457, and the response, 6464. 25 Let me hear from the respondent. OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788046 Page 13 1 MR. CASSELL: Thank you, your Honor. This 2 is Paul Cassell on behalf of the three intervenors. 3 I think in terms of making the record clear, 4 an important piece of the puzzle has been left out. I 5 represent both L.M. and E.W. in an action that is in front 6 of Judge Marra in the U.S. District Court for the Southern 7 District of Florida. That was filed in July of 2008, and 8 it remains pending today. 9 Both L.M. and E.W. have summary judgment 10 motions pending in that action. That action is filed as 11 Jane Does' -- that is L.M. and E.W. -- versus United 12 States, but Mr. Epstein has moved to intervene, and 13 intervention has been granted. So he is an intervenor in 14 that case. 15 THE COURT: So there is litigation -- 16 MR. CASSELL: That's an important part --- 17 THE COURT: -- going in the District Court 18 between the three intervenors, the government and 19 Mr. Epstein? 20 MR. LINK: Your Honor --- 21 MR. CASSELL: Two intervenors, L.M. and E.W. 22 Jane Doe is not a party to that litigation, and the reason 23 that's important to be in the record, your Honor, is the 24 materials that are at issue in this case could be used by 25 Mr. Epstein in connection with that action, should he OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788047 Page 14 1 decide to file motions of various types there. 2 Now, with regard to the motion to strike 3 specifically, I think it's important, again, to recall why 4 we're here in front of you, rather than in front of 5 Judge Hafele. 6 We asked Judge Hafele to take jurisdiction 7 over Fowler White, and he said, I have no jurisdiction 8 over Fowler White. That is for the bankruptcy judge. And 9 so that is why we've ended up here in front of you. 10 Frankly, we're a bit surprised to see this 11 motion to strike being presented now. As your Honor is 12 aware, on March 30th of this year we filed -- that is E.W. 13 and Jane Doe filed a motion to intervene, and in that 14 motion they asked to intervene both as a matter of right 15 and permissibly to, quote, protect their privileges, 16 protections and confidentiality interests in the materials 17 covered by this order, and to seek sanctions for 18 violations of that order. That was their motion to 19 intervene, and there were, I think, approximately five 20 pages of explanation as to why E.W. and Jane Doe believe 21 they have an interest in the confidentiality and the 22 material that was covered by this Court's order. 23 And on April 16th, then this Court granted 24 the motion to intervene, that's Docket Entry 6360, and it 25 was granted not only as to L.M., but also as to E.W. and OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788048 Page 15 1 Jane Doe. 2 The motion that is in front of you right now 3 attempts to, in our view, relitigate your decision 4 allowing them to intervene in this case, and of course the 5 only issue that's presented in the current motion in front 6 of you is that E.W. and Jane Doe lack standing to proceed, 7 but in order to have standing all a litigant needs to do 8 is allege some actual injury resulting from the action in 9 question, and we have five pages of argument explaining 10 why E.W. and Jane Doe had actual injury resulting from the 11 breach of the order. 12 So we think the issue was already decided, 13 but if your Honor wants to revisit it, we think there are 14 five pages in the record very clearly explaining why E.W. 15 and Jane Doe have interest in the confidentiality order 16 that your Honor entered back in 2010. 17 MR. PUGATCH: Judge, there is a difference 18 between this is Chad Pugatch again. There is a 19 difference between having standing to argue about the 20 confidentiality or the attorney/client privilege related 21 to the documents, and having standing to seek damages by 22 virtue of a violation of an order when you were not party 23 to the motion and order, and there is a difference between 24 damages that you seek as an intervenor due to a course of 25 conduct, which is normally brought in a lawsuit, and OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788049 Page 16 1 sanctions that are being sought for alleged contempt of 2 court for violating a court order. We're here with regard 3 to the latter. 4 This is an action seeking contempt and 5 sanctions for violation of a court order, when these two 6 parties, these two intervenors were not parties to the 7 motion or the order. 8 Our understanding was, when this was all 9 pointed out to you, and you were aware of the state court 10 issues regarding attorney/client privilege, and 11 Mr. McLachlan, I believe, raised that very issue, and we 12 joined in that issue, and you said you were going to allow 13 the intervention because of the companion issues in the 14 state court. It was never an understanding that that was 15 determining the issue of whether these parties were 16 entitled to seek damages, and that's why we're here, and 17 that's why we filed the motion, limited to standing, and 18 their motion to strike the damage claims, and their two 19 separate motions to strike. We're really dealing with the 20 argument on both of them at this time, just so the record 21 is clear. There is the one that we started with, which is 22 6456, then there is 6457, the other motion to strike, 23 which relates to the damage claims. 24 And, again, there is nothing in the argument 25 that Mr. Cassell made that supports that those two OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788050 Page 17 1 intervenors have damage claims in this action, and that's 2 what we're seeking to limit. 3 THE COURT: Now, and Edwards' client at the 4 time this Bankruptcy Court order was entered was the 5 attorney for L.W.? 6 MR. PUGATCH: L.M. 7 THE COURT: L.M. 8 MR. PUGATCH: I misspoke, it's L.M., E.W. 9 and Jane Doe. 10 MR. McLACHLAN: Judge, if I may be heard -- 11 THE COURT: Yes. 12 MR. McLACHLAN: -- whenever it's convenient? 13 Niall McLachlan, again, for Fowler White. 14 And the reason I'd like to be heard, Judge, 15 is we joined -- Mr. Epstein raised this issue in a 16 footnote to his motion to compel discovery. 17 We then joined on that issue expressly in 18 our limited joinder to that after the intervenors' 19 claimed, well, it's insufficient to raise an issue by 20 footnote. 21 What we pointed out in our limited joinder, 22 which is at Docket Entry 6454, is that the agreed order 23 cancelling hearing, which is what this whole case is 24 about, and that's the order under which the Court reserved 25 jurisdiction to enter sanctions in favor of Farmer Jaffe, OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788051 Page 18 1 Brad Edwards and his client, singular, that order was 2 entered on L.M. and Brad Edwards' motion for relief of an 3 amended order, which is on Docket Entry Number 1120. 4 It was L.M. and Edwards who had sought the 5 relief on which the order, from which everyone is trying 6 to claim damages, was entered, and I just want that to be 7 very clear. I think that's why the order specifically 8 says, Mr. Edwards, Farmer Jaffe, or his client, singular, 9 because only one client had joined in any request for 10 relief. 11 THE COURT: Your motion to sever, 12 Mr. Pugatch, is directed to E.W. and Jane Doe? 13 MR. PUGATCH: The motion to strike. 14 THE COURT: Motion to strike. 15 MR. PUGATCH: Yes, the two motions to strike 16 are directed to those two parties, E.W. and Jane Doe, 17 your Honor, and so the record is clear, the original 18 November 10th order is Docket Entry 1068, and the language 19 that Mr. McLachlan just quoted from is in the order 20 itself, and it's cited in our motion to strike, Docket 21 Entry 6457, in the middle of Page 2. I'm sorry, the 22 agreed order is 1194. 23 MR. CASSELL: Your Honor, this is 24 Paul Cassell, if I may just briefly respond? 25 THE COURT: Yes. OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788052 Page 19 1 MR. CASSELL: Your Honor, going back to 2 2010, it's true the order related only to L.M., because 3 L.M. was the only of the -- the only one of the three 4 victims before the Court at that time. 5 However, the underlying documents at issue 6 involve three victims, and that is why, when the breach of 7 this Court's order became apparent earlier this year, the 8 three people who have confidentiality interests and 9 stakes, that is privileged, protections, work product 10 information, security concerns, all came -- all three of 11 them came before you to intervene, and I think what we 12 have -- 13 THE COURT: But they can protect those 14 rights in state court. 15 MR. CASSELL: Not against Fowler White, 16 your Honor. The state court judge indicated that he did 17 not have jurisdiction over Fowler White, which is why we 18 then came over to this Court, because the state judge had 19 told us that only you have jurisdiction over Fowler White, 20 and we raised all these issues in our motion to intervene, 21 and I think we have essentially a word game going on from 22 the other side. 23 We sought to intervene, quote, to seek 24 sanctions for violation, close quote, of the Court's 25 order. So we are now seeking sanctions for violation of OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788053 Page 20 1 the order, specifically damages, among other things, and 2 if we're not allowed to seek damages, I'm not clear as to 3 what sanctions the other side thinks that we would be 4 entitled to seek. 5 So all we're asking is that your Court 6 adhere to your early ruling, allowing all three of the 7 victims to intervene in this case for purposes of, quote, 8 seeking sanctions, close quote, for violation of the 9 Court's order. 10 THE COURT: There was no finding that there 11 was a violation of the Court's order. 12 MR. PUGATCH: That has not been litigated -- 13 MR. CASSELL: Correct. 14 MR. PUGATCH: -- yet, Judge. That's --- 15 THE COURT: All right. 16 MR. PUGATCH: That's what's set for trial. 17 THE COURT: Anything further from the 18 parties in reference to Docket Entry 6456, 6457? 19 MR. PUGATCH: No, sir. 20 MR. McLACHLAN: No, your Honor. 21 THE COURT: All right. I'm going to 22 MR. CASSELL: No, your Honor. 23 THE COURT: All right. I'm going to grant 24 the motion to strike, order by Mr. Pugatch, for the 25 reasons argued in the pleadings and the arguments today OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788054 Page 21 1 before me. 2 MR. PUGATCH: Thank you, Judge. 3 THE COURT: Mr. Pugatch, see to the order. 4 MR. PUGATCH: Yes, sir. 5 MR. VITALE: Your Honor? 6 THE COURT: Yes. 7 MR. VITALE: David Vitale, V-i-t-a-l-e. 8 May I have a clarification on that order? 9 Oh, I'm sorry, I apologize. 10 The striking of E.W. and Jane Doe for the 11 purposes of seeking damages, are they still -- are those 12 two parties still intervenors for purposes of liability? 13 Because my understanding from Mr. Pugatch's argument was 14 that they may have standing to argue for liability, but 15 because they're not parties to the order they don't have 16 standing to claim damages, and I just want to understand 17 that point, because I think it will be relevant to the 18 bifurcation issue. 19 THE COURT: Response. 20 MR. LINK: Yes, sir. I don't know how they 21 can have standing to argue about liability if they were 22 not party to that order. 23 Our position has been they certainly have 24 standing if they want to assert privilege. This Court has 25 said that issue is for the state court, and that issue is OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788055 Page 22 1 before the state court. 2 So, the only issue before this Court, the 3 very narrow issue is, was there a violation of the order 4 by Fowler White and by Mr. Epstein and, if so, were there 5 any damages to the parties to that order? So, these folks 6 are not parties, so I'm not sure --- 7 THE COURT: They're not parties to the 8 order. 9 MR. LINK: They're not parties to the order, 10 your Honor, for liability or damages. 11 Thank you, Judge, and thank you for letting 12 me speak. 13 THE COURT: Does that answer your question? 14 MR. CASSELL: Your Honor, this is 15 Paul Cassell. If I could just briefly be heard? 16 Back in April this Court granted both E.W. 17 and Jane Doe permission to intervene in this matter, 18 that's Docket Entry 63 --- 19 THE COURT: There was no finding that they 20 were entitled to damages or that they had a claim. 21 MR. CASSELL: We were entitled to --- 22 THE COURT: They asked to intervene and take 23 a position. 24 MR. CASSELL: We asked to intervene to seek 25 sanctions for violation of the Court's order and -- OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788056 Page 23 1 THE COURT: My ruling --- 2 MR. CASSELL: -- and to provide clarity --- 3 THE COURT: -- has been dictated into the 4 record. Mr. Pugatch, see to the order. 5 MR. PUGATCH: Thank you, your Honor. 6 THE COURT: Turning now to the motion to 7 bifurcate liability and damages, Docket Entry 6455, 8 response 6463, 6465, 6466. 9 MR. LINK: Your Honor, before we start on 10 that motion, can I just make the Court aware that your 11 ruling will moot Mr. Epstein's motion 12 THE COURT: To compel. 13 MR. LINK: -- to compel, yes, sir. 14 THE COURT: All right. I'm going to get to 15 that next. 16 MR. LINK: Okay. Thank you, Judge. 17 MR. McLACHLAN: Thank you, your Honor. 18 Niall McLachlan again for Fowler White. This is the 19 motion to bifurcate, Docket Entry 6455. All the parties 20 have responded to the motion. 21 I won't spend a lot of time on the motion. 22 THE COURT: Well, Epstein is the only person 23 that's objected. 24 MR. McLACHLAN: That's exactly what I was 25 about to say, Judge, that's right. OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788057 Page 24 1 MR. LINK: Would you like to hear from us, 2 your Honor? 3 THE COURT: Yes. 4 MR. PUGATCH: We can make the response very 5 quick, Judge. 6 Mr. Epstein didn't do anything wrong. 7 You've got already filed his sworn testimony, when we had 8 to comply with your pretrial order, that says I didn't 9 have it, I didn't disseminate it, I didn't do anything 10 with it, and so we want this over with. We don't want 11 this dragged out. It's already been dragged out for 12 months, and so you've set a trial date, and we want the 13 whole thing dealt with all at once. 14 So we're asking that if there is going to be 15 a trial, it deal very -- it will be very quick dealing 16 with the issue of who did what, and I agree the 17 depositions should determine whether there is liability 18 out there or not, and then if we get beyond that, we have 19 the day set aside, we should litigate the issue of 20 damages. 21 And for clarification purposes, our motion 22 to compel on the depositions is only mooted as to the two 23 parties where you just struck standing. There is still 24 one pending as to the one -- 25 THE COURT: That's why I was going to take OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788058 Page 25 1 it separately. 2 MR. PUGATCH: -- yes, remaining intervenor. 3 So, Judge, it's your discretion to do as you 4 will, but Mr. Epstein wants to make it clear, he wants to 5 get this over with. 6 Thank you. 7 THE COURT: Mr. McLachlan. 8 MR. McLACHLAN: Thank you, your Honor. 9 I think all of the parties want to get this 10 over with, but there are important issues of due process 11 at stake. 12 Fowler White, in order to defend any damage 13 claim, needs time to get discovery. The intervenors, in 14 particular, have been very coy, and have not indicated, 15 despite numerous requests, how do they intend to prove 16 their emotional distress claims, or now we are only down 17 to one, so I'll back off on that, I know there is only one 18 intervenor left, but intervenors' counsel has refused to 19 say whether they're going to hire an expert, whether 20 they're going an appear themselves. What he's actually 21 said so far, and he just put this in his response, I think 22 it was filed yesterday, is, well, we don't think we're 23 going to hire an expert, but they're going to be able to 24 prove their emotional distress damages -- the remaining 25 intervenor is going to be able to prove her emotional OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788059 Page 26 1 distress damages based purely on the testimony of 2 Mr. Epstein and Fowler White's representative. That's -- 3 let's just put it, it's unsupported, and it's an 4 unsupportable position. 5 So, given that the hearing is scheduled for 6 October 26th, we believe it would be both in the interest 7 of due process, which is paramount, but also, of course, 8 in the interest of judicial economy. Fowler White 9 continues to believe the Court will find, if not 10 compliance with the order, then substantial good faith 11 compliance and, therefore, no contempt. 12 And if that's the case, we don't need to go 13 into a day, or two, or three -- maybe two days of expert 14 testimony. We believe we need extensive discovery. We 15 also need discovery not only from the remaining intervenor 16 at this point, but also from the lawyers who are all 17 claiming attorney's fees, and there is simply no time for 18 that sort of discovery prior to October 26th, and so for 19 those two reasons, Judge, we respectfully maintain that 20 bifurcation would be in the parties' interest, Fowler 21 White's interest, certainly. 22 Thank you, Judge. 23 THE COURT: All right. The motion to 24 bifurcate, Docket Entry 6455, will be granted, order by 25 Mr. McLachlan. OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788060 Page 27 1 MR. McLACHLAN: Thank you, Judge. 2 THE COURT: All right. The motion to compel 3 intervenors, Docket Entry 6440 brought by Epstein. 4 MR. PUGATCH: Yes, Judge. We'll leave that 5 in your discretion. We could argue it now, or we could 6 await the outcome of the liability trial, now that 7 you've -- 8 THE COURT: No, we're going to -- 9 MR. PUGATCH: -- bifurcated it. 10 THE COURT: -- on the motion to compel, 11 we're going to strike E.W. and Jane Doe from the motion to 12 compel -- 13 MR. PUGATCH: Yes, sir. 14 THE COURT: -- because they're no longer at 15 issue in this case. 16 MR. PUGATCH: Yes, sir. So, we can argue it 17 now, or if you want to await the outcome of your liability 18 decision, because if you rule that there is no liability, 19 that would moot the need to even deal with this. So we're 20 prepared either way. 21 THE COURT: We'll continue L.M. to be heard 22 after the liability phase -- 23 MR. PUGATCH: Yes, sir. 24 THE COURT: -- has been determined. 25 MR. PUGATCH: Judge, may I suggest, maybe OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788061 Page 28 1 just for housekeeping, you want to carry that motion over 2 to October 26th, with the understanding that this is the 3 place saver, and then you can 4 THE COURT: Status conference. 5 MR. PUGATCH: Yes. 6 THE COURT: All right. Strike or deny the 7 motion to compel to E.W. and Jane Doe for the reasons 8 MR. PUGATCH: It's moot. 9 THE COURT: -- we're discussed, and continue 10 the motion to compel against L.M., to be heard at a later 11 date, and a status conference will be scheduled on the 12 motion -- 13 MR. PUGATCH: Right. 14 THE COURT: -- for whatever date we have. 15 MR. PUGATCH: Yes, sir. 16 And, Judge, if it wasn't clear, when I said 17 it was moot, I meant the motion to compel, not obviously 18 the motion to strike. 19 THE COURT: All right, that then takes us to 20 the motion for protective order, Docket Entry 6421, 21 response 6437, reply 6443. 22 MR. McLACHLAN: Thank you, Judge. 23 Niall McLachlan again for Fowler White. 24 We -- as I mentioned earlier, we briefed 25 this motion a few months ago. A couple months ago we had OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788062 Page 29 1 a preliminary hearing. It was set on just a few days 2 notice. So you Honor, after hearing argument, gave 3 Mr. Edwards an opportunity to file a response. He did 4 that. Fowler White then filed a reply at Docket 5 Entry 6443. Mr. Edwards' response is at 6437. 6 Judge, we believe the motion should be 7 granted based primarily on the motion for sanctions, which 8 wasn't just a motion for sanctions, it was called motion 9 for issuance of order to show cause why Fowler White and 10 Jeffrey Epstein should not be held in contempt, to permit 11 discovery, and for other relief. 12 We had a hearing on that motion, and the 13 parties' responses on April 13th, at which, and I've 14 quoted the transcript in depth, there was substantial 15 discussion about discovery, and your Honor said we're not 16 getting into all of that, you can have two depositions. 17 You can depose Mr. Epstein and you can depose Fowler 18 White's corporate representative on very limited issues, 19 and that was, chain of custody of the disk, and the 20 alleged violation of the agreed order -- I'm sorry, chain 21 of custody of documents on the disk, and the alleged 22 violation of the agreed order. 23 I think the ruling was fairly clear from the 24 Court's comments, and I've, as I said, quoted them 25 extensively in our motion. OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788063 Page 30 1 The order to show cause echoed the Court's 2 oral pronouncement, and that was two depositions -- it 3 actually said more, it said people at Fowler White who may 4 have knowledge of the custody of the disk, but there was 5 no reference to production of documents, as was 6 specifically requested in Mr. Edwards or Farmer Jaffe's 7 motion. 8 In addition, Judge, we believe that the 9 scope of what Mr. Edwards is seeking is almost 10 ridiculously overbroad. His request, essentially, are all 11 communications between Fowler White, Mr. Epstein and any 12 representative of Mr. Epstein which relate to the subject 13 disk, or any information derived from documents or data on 14 the disk. 15 Now, your Honor probably remembers that 16 there were 27,540 pages of documents produced. Over 17 21,500 pages, there was no dispute Fowler White was 18 supposed to get those because they were produced back to 19 Fowler White as non-privileged documents. There was only 20 approximately 6,400 documents which remain on the 21 privilege log. 22 So to ask for all documents which relate to 23 any information derived from documents or data on the 24 disk, especially during the period that Fowler White 25 represented Mr. Epstein, for about a year after the order OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788064 Page 31 1 was entered, by definition calls for attorney/client 2 privilege, because any lawyer, when discussing the status 3 of a case with his client, is going to discuss the 4 non-privileged materials that have been turned over, the 5 21,000 pages of non-privileged materials. 6 Now, Mr. Edwards in his response says, oh, 7 Judge, there is an admission for you, because if Fowler 8 White contends that there was any attorney/client 9 privilege materials, that's a gotcha, they must be talking 10 about the privileged documents. But as I just explained, 11 that couldn't be further from the truth. 12 Additionally, Mr. Edwards argued that 13 because your Honor's order to show cause talked about the 14 parties submitting exhibit binders, well, exhibits mean 15 documents and, therefore, you have to have anticipated 16 document production. 17 Well, that doesn't make sense, because it 18 was a standard order for an evidentiary hearing, and under 19 the local rule any exhibit binder would have to, at a 20 minimum, include written declarations of the direct 21 testimony, and if Mr. Edwards has documents which can show 22 that these were actually privileged materials, which were 23 filed in the state court, we think it's his burden, 24 obviously those documents would have to be in the file -- 25 in the exhibit binder. OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788065 Page 32 1 So, I don't know that -- it seems, and 2 especially if you look at the limited scope of the issues 3 before the Court, the volume of documents would be 4 inordinate, and is out of proportion to the narrow issues 5 in this case. 6 Interestingly, as I point out in the reply 7 at 6443, I spoke to Mr. Edwards' counsel, and I said, 8 look, just to be very clear on this, so we don't waste the 9 Court's time, if really what you're asking for is 10 communications regarding privileged materials on the disk, 11 there aren't any. 12 So, any suggestion that that's really what 13 they're seeking here, and not the broader universe of 14 documents, which could take months to prepare a privilege 15 log, is just -- it doesn't hold water, Judge, and it just 16 seems -- I think the pronouncements at the hearing were 17 clear, the order to show cause is clear, they can take the 18 deposition of Fowler White's representative, he will 19 testify, and I think it's going to be fairly clear. 20 To give them every communication with 21 Mr. Epstein or his lawyers relating to any document that 22 may have been on the disk far exceeds what was -- 23 THE COURT: How did -- 24 MR. McLACHLAN: -- anticipated. 25 THE COURT: -- Fowler White come to have the OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788066 Page 33 1 disk in its possession? 2 MR. McLACHLAN: Yes, Judge. Well, that's an 3 interesting point in and of itself, that we don't know the 4 answer to, but here is what we do know, under your --- 5 THE COURT: Somebody made the disk. 6 MR. McLACHLAN: Somebody made the -- well, 7 we know who made the disk. We know who made the disk, 8 because Fowler White, and this is in our response to the 9 motion for order to show cause, Fowler White was told, you 10 will get the original CDs, and you will then print the 11 documents after you Bates number them. 12 The only way for that to be done, and we've 13 put that in a motion for order to show cause, is you copy 14 the documents into a short term temp file, then you 15 transpose the Bates number over those documents and burn 16 the results onto the disk. That's the disk that we 17 returned. We returned original disks to Judge Carney, we 18 have an email to that effect. That disk was then -- well, 19 we produced the, I think, seven bankers boxes of documents 20 to Farmer Jaffe within three days of us receiving the 21 disks from Judge Carney, and now what we're left with is 22 an allegation that a disk that contained every one of the 23 documents was in one of the 36 boxes that was delivered to 24 Mr. Epstein's new counsel, Mr. Link, seven and a half 25 years after the documents were Bates numbered and printed OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788067 Page 34 1 in accordance with the order. 2 We don't know how the disk got in the box. 3 We haven't been able to examine the disk. Mr. Vitale 4 indicated, I think this morning, that he would be willing 5 to agree to some relief that would allow Fowler White to 6 examine it, because we had a couple of theories, Judge, 7 three theories, I think there are only three. 8 If the disk that was in one of the 36 boxes 9 contained all of the documents, privileged and 10 non-privileged, there are really three ways that I can 11 envision anyway, and I'm purely guessing. One of them is 12 Judge Carney, when he got finished with his duties, said, 13 hey, Fowler White, here is a disk you guys sent me a year 14 and a half ago, and someone at Fowler White just went, 15 Epstein, oh, we're finished with this case, and just threw 16 it in the box. 17 The second theory is that in one of the five 18 boxes of bankers boxes -- one of five banker boxes of 19 documents, of non-privileged documents that were produced 20 back to us by Farmer Jaffe, that a paralegal printed the 21 documents off the disk and mistakenly left it in the box, 22 and the third issue, which is possible, but we just don't 23 know, is that whoever -- the IT person who burned the disk 24 somehow kept a copy and dropped it in the file. 25 But what will be testified to by the OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788068 Page 35 1 corporate representative is, we have no idea -- if that 2 was the disk, we have no idea how to got there. However, 3 we have found no indication that anyone looked at any 4 privileged materials, there is no time entered for that. 5 And so the only thing that is clear, is that 6 from whenever the disk was received by Fowler White, and 7 whether it was in November two thousand -- or actually it 8 was December 7, 2010, when the original disks were 9 delivered to us for copying, or some time thereafter, what 10 we do know is the disk was never used. It was in a box 11 that was in storage. 12 The first time these privileged materials 13 surfaced was seven and a half years later, when Mr. Link 14 said, please send me all of Mr. Epstein's files, and 15 Fowler White sent him the 36 boxes of documents, and 16 Mr. Link contends that there was a disk in that, one of 17 those 36 boxes that had all of the documents on it. 18 THE COURT: That he had no knowledge of. 19 MR. McLACHLAN: He had no prior knowledge of 20 it, right. Mr. Link said, oh, what's this? It's a disk. 21 Let me look at some documents, and that's how this whole 22 case came about. 23 THE COURT: Well, it came about when he 24 apparently added it as an exhibit or something in the 25 state court proceeding, and then the other side said, wait OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788069 Page 36 1 a minute. 2 MR. McLACHLAN: That's exactly right, Judge. 3 That's right. 4 THE COURT: All right. Response. 5 MR. VITALE: Thank you, your Honor. 6 David Vitale, V, as in Victor, i-t-a-l-e. 7 Your Honor asked how did the disk get into 8 the box, and Mr. McLachlan gave you three theories. I 9 presume he came up with those three theories by reviewing 10 documentation relevant to the chain of custody of the 11 disk. 12 And he finished with --- 13 THE COURT: Wait a second. They don't know 14 who made the disk. 15 MR. VITALE: I believe they said they did 16 know who made the disk. 17 MR. McLACHLAN: We understand, Judge -- 18 Niall McLachlan again. 19 We understand that in order to Bates number 20 and print the documents a disk would have had to have been 21 made. 22 What we don't understand, and for counsel to 23 say he believes I understand this from our review of 24 documents is simply inaccurate, because these exact same 25 theories, and that's all they are, were in our initial OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788070 Page 37 1 response to the motion for order to show cause because we 2 simply didn't know. 3 MR. VITALE: Well, I would just point out 4 that I believe what was said in part was that we have an 5 email to that effect. So there is definitely some 6 correspondence that must have been relied upon unless 7 these three theories are being hatched by presumptions and 8 speculation. 9 THE COURT: Well, you won't know until you 10 take the deposition of the Fowler White representative. 11 MR. VITALE: Or, your Honor, I would know if 12 we have -- correct, once we take the deposition, presuming 13 that Fowler White is going to produce the limited 14 documents that we've requested, that deal directly with 15 chain of custody and documents on the disk and, you know, 16 to go back to the evidentiary hearing and move forward to 17 it, Mr. Edwards is going to have the burden based on clear 18 and convincing evidence to show that this Court's order 19 was violated. That is a very high burden, and Fowler 20 White has expressed concerns for due process in defending 21 against this charge. 22 Mr. Edwards should also be entitled to 23 reasonable discovery to meet a very high evidentiary 24 burden. 25 THE COURT: What's reasonable discovery, OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788071 I'ajc 38 1 every email that transpired in the time Fowler White -- 2 when Fowler White got the documents in the discovery from 3 the trustee? 4 MR. McLACHLAN: Yes, Judge, the documents 5 came from the trustee, that's correct. 6 THE COURT: And then they were copied and 7 given to Farmer Jaffe? 8 MR. McLACHLAN: Well, they were printed 9 and --- 10 THE COURT: Printed and given to Farmer 11 Jaffe. 12 MR. McLACHLAN: That's right, and, Judge, 13 just to reference the email, the email that I'm referring 14 to, that's the email that was attached to our response to 15 the motion for order to show cause. Counsel has those 16 emails. They were the emails where Farmer Jaffe and 17 Fowler White's representatives said -- Farmer Jaffe said, 18 I'm sending you the disk -- or Fowler White said, I'm 19 sending someone over to pick up the disks from 20 Judge Carney. We'll print them, we'll deliver them to 21 you, and we understand that you don't want to have a 22 representative there at the time. 23 Three days later we printed the documents, 24 we're sending them to you, and we're returning the 25 original disk to Judge Carney. Those emails are attached OUELLETTE & MAULDIN COURT REPORTERS. INC. (305) 358-8875 EFTA00788072 Page 39 1 to the response to the order to show cause. 2 THE COURT: All right. So you have those 3 emails? 4 MR. VITALE: Those emails, your Honor, and 5 I'll go through the duces tecum request, I think that 6 might be the best way to handle it. Your Honor asked what 7 limited discovery are we looking for. The first request 8 is all communications and all records relating to the 9 chain of custody of the subject disk itself and/or 10 relating to the chain of custody of information derived 11 from documents or data contained on the subject disk. 12 That's two requests. The first is, I'd like everything 13 you have related to the chain of custody of this disk. 14 The representation has been made repeatedly 15 that this disk sat in a box for seven or eight years. 16 Well, there should be communications to that effect, once 17 the printing was done, once everything was done. 18 THE COURT: Not if anybody didn't know that 19 the disk was in the box. 20 MR. VITALE: There would be a time record, 21 your Honor, from Fowler White. Whoever handled the 22 copying and was handling the subject disk, the person who 23 they alleged physically put that in the box, that's a 24 paralegal or an attorney. Fowler White keeps time 25 records. Those time records will show us about chain of OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788073 Page 40 1 custody of the disk. 2 The second portion relating to information 3 derived from --- 4 THE COURT: And what time period would that 5 be? 6 MR. VITALE: That would be from the date of 7 your order to the present. They should -- the order is 8 very clear they were not to retain the subject disk. 9 There is a subject disk that has been retained. Chain of 10 custody from November 2010 to present is relevant for the 11 determination of liability at the show cause hearing. 12 I can't think of a more targeted request 13 than give me all the documents, time sheets, emails, 14 written papers that relate to the chain of custody of the 15 subject disk that we allege you are in possession of in 16 violation of this Court's order. 17 The second part of number one, your Honor, 18 and I want to be clear to what this asks for, because I 19 think the claim being made is, well, your Honor, we ended 20 up getting a bunch of these emails anyway, we had 5,000 or 21 however many there were, there is no question we were 22 entitled to those. That's not what we're asking for. 23 We're asking for documents from this disk. 24 This disk, inclusive of what we contend are privileged 25 communications and --- OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788074 Page41 1 THE COURT: Do you have a copy of the disk? 2 MR. VITALE: The copy is -- there is a copy 3 of the disk under seal with Judge Hafele, and Mr. Link 4 sent us a jump drive of the disk that I believe my office 5 still has possession of, but I would need to confirm that. 6 MR. LINK: May I answer the question for the 7 Court? 8 THE COURT: Yes. 9 MR. LINK: Scott Link, your Honor. 10 We provided them, once they raised -- once 11 Brad Edwards' team of lawyers raised the issue, that they 12 thought there were privileged documents on that disk, we 13 immediately made a copy of the disk and sent it to them. 14 So they, in fact, are the only ones that 15 have access to the disk. Judge Hafele, Judge Hafele had 16 us seal the disk, which we did, and then there is an 17 original in a box in my office, which pursuant to the 18 Court's order sits in that box. Fowler White does not 19 have a copy of the disk any more. 20 MR. VITALE: We have a junk drive copy. Who 21 has the original disk, is that in a box in your office, 22 sealed? 23 MR. LINK: There are two disks. 24 MR. VITALE: Okay. 25 MR. LINK: Two disks, one sealed with the OUELLETTE & NIAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788075 Page 42 1 state court, and one that sits in a box in my office. 2 MR. VITALE: Sealed? 3 MR. LINK: Exactly as it came to me, 4 correct. 5 So they have --- 6 MR. VITALE: We have the documents, 7 your Honor. What I don't have -- this is not about the -- 8 this is not just about the copy that we received to show 9 us what was on the disk. This is about the subject disk 10 itself to determine chain of custody, and I think that 11 goes to Mr. McLachlan's point earlier, which was also 12 raised in his motion for protective order, that they would 13 like an IT expert to examine the disk in question, to 14 determine whether any chain of custody issues can be 15 resolved, for instance, who opened the disk, who opened 16 documents on the disk, whether an IT forensic expert can 17 make that determination. We don't object to that request, 18 subject to our ability to potentially hire our own 19 competing expert, but the issue of the chain of custody of 20 the disk is obviously highly relevant to the show cause 21 hearing coming up on October 26th. 22 THE COURT: Response. 23 MR. McLACHLAN: Thank you, Judge. 24 As I've already indicated, and as I've 25 indicated to counsel, there are no emails or documents OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788076 Page 43 1 related to privileged information on the disk, but that's 2 not what they're asking for, and then don't -- I think the 3 Court understands, but I'm going to point it out one more 4 time, it's not in our request, all communications relating 5 to any information derived from documents or data on the 6 disk, 21,000-plus unprivileged emails. There are about 7 6,400 emails which remain on the amended privilege log. 8 So, if the request said documents or data 9 relating to the disk or any privileged information on the 10 disk, that would be somewhat more manageable, and it's 11 going to be a pretty limited production, from what I 12 understand. 13 There is another issue that I just saw 14 raised in Mr. Link's response, and he says that the 15 Razorback documents are similar to the Fowler White 16 documents -- I mean, the documents on the disk, but we 17 don't know that to be the case, whether or not it is, but 18 we do know that Razorback produced documents to Fowler 19 White, and so it's -- I mean, if it was production of 20 documents reflecting communications concerning the 21 privileged materials on the disk, or the custody of the 22 disk itself, that would be more manageable, but what 23 they're asking for -- yes, Judge. 24 THE COURT: On the motion for protective 25 order and the response thereto, I'm going to grant the OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788077 Page 44 1 motion for protective order without prejudice to future 2 discovery request of a specific nature, more specific 3 nature. Mr. McLachlan, see to a simple order. 4 MR. McLACHLAN: Thank you, Judge. 5 THE COURT: Thank you. That concludes on 6 Rothstein Rosenfeldt & Adler. 7 MR. LINK: Your Honor, thank you very much 8 time for your time today. 9 MR. VITALE: Thank you, your Honor. 10 MR. PUGATCH: Thank you, Judge. 11 MR. McLACHLAN: Thank you, Judge. Have a 12 great day. 13 MR. LINK: And Court personnel as well, 14 thank you. 15 MR. CASSELL: Thank you, your Honor. 16 ECRO: CourtCall, we'll disconnect. 17 18 19 20 (Thereupon, the hearing was concluded.) 21 22 23 24 25 OUELLETTE & MAULDIN COURT REPORTERS, INC. (305) 358-8875 EFTA00788078 Ikwc 45 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 14th day of 15 October, 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. (305) 358-8875 EFTA00788079