EFTA00788112

1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 502009CA040800XXXXMB JEFFREY EPSTEIN, Plaintiff, VS. SCOTT ROTHSTEIN, individually, BRADLEY EDWARDS, individually, Defendants/Counter-Plaintiffs. TRANSCRIPT OF PROCEEDINGS VOLUME I DATE TAKEN: Tuesday, October 3rd, 2017 TIME: 10:01 a.m. - 4:43 p.m. PLACE 205 N. Dixie Highway, Room 10C West Palm Beach, Florida BEFORE: Donald Hafele, Presiding Judge This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were reported by: Sonja D. Hall Palm Beach Reporting Service, Inc. 1665 Palm Beach Lakes Boulevard, Suite 1001 West Palm Beach, FL 33401 (561) 471-2995 Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788112 2 1 APPEARANCES: 2 For Bradley Edwards: 3 SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 4 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 5 By JACK SCAROLA, ESQUIRE By DAVID P. VITALE, JR. 6 7 For Bradley Edwards: 8 BURLINGTON & ROCKENBACH PA 444 W Railroad Avenue, Suite 350 9 West Palm Beach, FL 33401 By PHILIP MEAD BURLINGTON, ESQUIRE 10 11 For Jeffrey Epstein: 12 W. CHESTER BREWER, JR., P.A. 250 S. Australian Avenue, Suite 33401 13 West Palm Beach, FL 33401 By W. CHESTER BREWER, JR., P.A., ESQUIRE 14 15 For Jeffrey Epstein: 16 TONJA HADDAD, P.A. 315 S.E. 7th Street, Suite 301 17 Fort Lauderdale, FL 33301 By TONJA HADDAD COLEMAN, ESQUIRE 18 For Jeffrey Epstein: 19 ATTERBURY, GOLDBERGER & WEISS, P.A. 20 250 Australian Ave. South, Suite 1400 West Palm Beach, FL 33401 21 By JACK A. GOLDBERGER, ESQUIRE 22 For Jeffrey Epstein: 23 DARREN K. INDYKE, PLLC 575 Lexington Avenue 24 New York, NY 10022 By DARREN K. INDYKE, ESQUIRE 25 Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788113 3 1 THE COURT: We have various motions on 2 the Edwards counterclaim that was brought 3 against Mr. Epstein relative to the 4 remaining count of malicious prosecution. I have read as much as the materials 6 that someone can sit down and read for the 7 better part of five or six hours. I tried 8 to highlight as many of the provisions as I 9 thought were appropriate as possible. 10 Mr. Goldberger, I see that you are 11 here. I have not yet seen a motion to stay. 12 MR. GOLDBERGER: It's here, Your Honor. 13 It's ready to go. I am going to file it 14 today. I am going to file it this morning. 15 I will give a courtesy copy to all counsel 16 and for the court as we speak. 17 THE COURT: What I was going to say -- 18 Mr. Goldberger and Mr. Scarola, if I could 19 be heard on the subject is this. The motion 20 to stay, which you essentially explained the 21 purpose behind it -- at least as to most of 22 the motions that are scheduled for today 23 is not really germane to those issues as far 24 as the Court is concerned. 25 There may be some peripheral relevance Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788114 4 1 in that respect. But as far as my review of 2 the materials are concerned, it really 3 doesn't apply here today that I can really 4 see. So I don't know if you want to deal 6 with that issue first. 7 MR. GOLDBERGER: I agree with the Court 8 in large part that the motion to stay does 9 not necessarily impact some of the matters 10 here today, other than the motions in 11 limine, Your Honor. 12 Mr. Scarola and his team of lawyers are 13 trying everything they can to inject into 14 your case criminal investigations of 15 Mr. Epstein, civil lawsuits that have been 16 settled, all of which, if Your Honor is the 17 gatekeeper, allows those matters to come 18 into evidence, would very much impact our 19 motion to stay because he wants to go -- he 20 wants to dive headfirst into matters that 21 are a subject of the non-prosecution 22 agreement and other possible prosecutions of 23 Mr. Epstein. 24 So I do agree with the Court that many 25 of the matters can be heard today. But Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788115 5 1 anything that approaches or touches on 2 evidentiary matters as to what the Court may 3 allow into evidence on their cause of action 4 for malicious prosecution alleging that 5 Mr. Epstein did not have probable cause to 6 file a lawsuit against Mr. Edwards. 7 If they want to go on this fishing 8 expedition and put in front of the jury all 9 kinds of matters totally unrelated to the 10 cause of action, then, yes, the motion to 11 stay does need to be heard. 12 THE COURT: Thank you. 13 Mr. Scarola. 14 MR. SCAROLA: Your Honor, Jack Scarola, 15 David Vitale from Searcy, Denney, Scarola, 16 Barnhart and Shipley; and Mr. Phil 17 Burlington of Burlington and Rochenbach, on 18 behalf of Mr. Edwards in this matter. 19 As has been acknowledged, we have not 20 yet seen a motion to stay. It has not been 21 filed. It's hard for me to see how it could 22 possibly have any merit. But you and I are 23 both speculating in that regard, since we 24 have not seen a motion. 25 In light of the fact that the Court set Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788116 6 1 a deadline for filing motions in this 2 matter, and that deadline has long passed, I 3 suggest that we should proceed with 4 everything that is scheduled to be heard as 5 if no motion to stay existed, because no 6 motion to stay exists. 7 So we are ready to proceed. 8 THE COURT: That's fine. I think that, 9 again, without the filing for the motion to 10 stay and the terms and conditions of the 11 motion, as well as what the ultimate request 12 for relief may be, is unknown at this 13 juncture. 14 However, at the same time, there will 15 be arguments that are made relative to 16 motions in limine, that while they may touch 17 on what would be formally filed as a motion 18 to stay, maybe -- that being the 19 arguments -- relevant to the Court's 20 consideration of those specific items, 21 irrespective of the motion to stay, meaning, 22 for example, there's been some reference to 23 Mr. Epstein as a, quote, serial child 24 molester, end quote. That can be discussed, 25 in my respectful view, outside of a formal Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788117 7 1 motion to stay. 2 The one thing that I do want -- and I'm 3 sure it's in this three- or 4 three-and-a-half-foot proof of paper is the plea agreement, what Mr. Epstein 6 actually pled to. That would be of 7 assistance to me if it's tabbed somewhere or 8 if it's somewhere handy for someone to get 9 their hands on for me to see that. 10 MR. GOLDBERGER: When I send a courtesy 11 copy of my motion to stay, I will include a 12 copy as well. 13 THE COURT: If somebody has it handy, I 14 will need it during the proceeding, because 15 I want to see that -- because it's only 16 going to be material to some of the Court's 17 decision-making, as far as I'm concerned, in 18 how far we go with regard to the terminology 19 that's going to be used, what Mr. Epstein 20 pled to. 21 And obviously, the touchtone here and 22 malicious prosecution is obviously one 23 element -- one of the important ones as far 24 as malice the issues. 25 So we recognize that malice being one Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788118 8 1 of the primary element of the malicious 2 prosecution claim, what may have been in the 3 mindset of Mr. Epstein when he filed the 4 claim against Rothstein, Edwards and LM -- 5 initials being used only since she was 6 allegedly a minor at the time that the suit 7 was brought -- is of importance to the 8 Court. What was the motivation? What was 9 the theory? What was the intent? All of 10 these things do go to malice. 11 So, while I would love to be able to 12 try a case that is sanitized, both from the 13 acts of Rothstein and the Rothstein firm and 14 those who were involved in the Ponzi scheme 15 that Mr. Rothstein engaged in, as well as 16 sanitized as to a great deal of the 17 allegations as it relates to those claims 18 that Mr. Epstein settled pertaining to the 19 claims of sexual misconduct on the part of 20 Mr. Epstein I am not certain that we are 21 going to be able to get that far. 22 However, there will be limitations, I 23 can assure you, that the Court will 24 institute once I have been able to hear the 25 respective arguments of both sides. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788119 9 1 There have been concessions made by 2 both sides in their papers. There's a 3 modicum of evidence as it relates to these 4 issues that's likely going to be heard by the jury. 6 So, let's go ahead and proceed. What I 7 would like to do is proceed first with the 8 motion for summary judgment that was filed 9 by Mr. Edwards -- strike that -- by 10 Mr. Epstein -- excuse me -- as it relates to 11 Mr. Edwards' fourth amended counterclaim. 12 So let's start there. 13 Thank you both, gentlemen. 14 MR. GOLDBERGER: Your Honor, may I take 15 my time at the podium just to address some 16 issues that's been festering a little bit? 17 I don't know if the Court wants to hear from 18 me. 19 THE COURT: Let's wait, Mr. Goldberger. 20 I promise if those matters are still 21 festering at the conclusion of today's 22 hearing, I would be glad to hear from you. 23 I would like to get into the substantive 24 matters if we can. 25 MR. GOLDBERGER: Thank you, Your Honor. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788120 10 1 MR. SCAROLA: With Your Honor's 2 permission -- 3 MR. GOLDBERGER: I apologize, 4 Mr. Scarola, but we do have a motion for enlargement of time that is pending, and we 6 would like to be heard on that, at least, 7 prior to you hearing the summary judgment 8 motion. 9 I apologize, Mr. Scarola, for jumping 10 in. 11 THE COURT: Okay, the motion of 12 enlargement of time relative to the motion 13 filed on September 25th, 2017? 14 What was the title of the motion? 15 MR. GOLDBERGER: It's Ms. Haddad 16 Coleman's motion that was filed. I am going 17 to let her argue it, Your Honor. But it 18 addresses all issues that we have not had 19 sufficient time for lots of reasons to be 20 prepared to argue the motion for summary 21 judgment today. 22 Your Honor will recall at the hearing 23 of September 15th when I was on vacation 24 there were two motions that were pending at 25 the time, and the Court said we are going to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788121 11 1 be ready to go on those two motions. 2 We received a barrage of motions 3 subsequent to that time filed by Mr. Scarola 4 and his team of lawyers. We have three 5 lawyers. One is a criminal defense lawyer 6 and two sole practitioners who are working 7 on this case, and we have a client who has 8 been devastated by the hurricane, whose home 9 is gone, we cannot communicate with, so the 10 motion for enlargement is based on all of 11 the matters I'm asking Ms. Haddad Coleman to 12 address. 13 THE COURT: I saw this reference to a 14 motion for enlargement of time, the motion 15 filed on September 25th, and I didn't see 16 anything else. 17 Which motion are you talking about? 18 Again, I didn't go back and try to 19 cross-reference dates with material here. 20 It is not a easy task for one person to do. 21 MS. HADDAD COLEMAN: May I approach, 22 Judge? I have an extra copy. 23 The motion is very short, the basis for 24 which is clearly delineated within it. 25 As the Court's aware, we had a hearing Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788122 12 1 on September 15 to get a hearing date on our 2 motion for summary judgment, at which time 3 you had us agree to file certain motions by 4 September 25th and our responses to those motions to be filed by September 28th. 6 At the time of this hearing, Judge -- 7 again, I am a sole practitioner. I reside 8 in Broward County. My office is in Broward 9 County. I did not regain power, Internet or 10 any other access until late after hours 11 Monday, September 18th, 2017. 12 As the Court is also aware, at the last 13 hearing at which the Court ordered these 14 deadlines, Mr. Brewer -- who is also a sole 15 practitioner, who is my civil co-counsel in 16 this matter -- indicated to the court in the 17 transcript that he was going to be gone the 18 entire week of September 25th. 19 We were able to file motions that we 20 felt the Court had discussed at the hearing 21 and wanted to hear, which were filed 22 previously, in this case being the motion in 23 limine. The motion for summary judgment had 24 been filed in June. And then three motions 25 directed at discovery for which we were Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788123 13 1 compelling better responses from 2 Mr. Edwards, which again, had been filed in 3 the past, because the Court may remember, 4 this case was stayed for three years while 5 it was on appeal -- from 2014 until June of 6 this year. 7 As of September 8th when Hurricane Irma 8 hit the Virgin Islands -- Mr. Epstein 9 resides in the Virgin Islands -- I have 10 little to no ability to communicate with him 11 since that date, and as such, he has been 12 unable to really participate in anything 13 dealing with the motions that are pending 14 for today. 15 And on September 25th, we received a 16 number of substantive motions from 17 Mr. Scarola. And in addition, we've 18 received motions directed at our motion for 19 summary judgment. And then in addition to 20 that, on the 28th, received replies, 21 responses, motions to strike and things of 22 that nature, just related to the summary 23 judgment alone, never mind discovery issues, 24 motions in limine and things of that nature 25 Judge. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788124 14 1 It was just me. And in those three 2 days I also had one arbitration, one 3 mediation, five depositions scheduled 4 previously. And Yom Kippur and Rosh Hashanah fell within those dates which you 6 gave us to respond. 7 We are not trying to delay, Judge. We 8 are ready to go forward. As the Court 9 knows, the Florida Supreme Court finished 10 with this case mid-June. Within a week and 11 a half we had our motion for summary 12 judgment filed. We have been actively 13 pursuing discovery. This is not for a delay 14 tactic at all, Your Honor. 15 Many of Mr. Scarola's motions, 16 especially those germane to discovery 17 issues -- and you said that you don't think 18 anything will be impacted by the stay 19 here -- my client's right to attorney-client 20 privilege and things like that are the crux 21 of many of these motions. And with little 22 to no input from Mr. Epstein, or any ability 23 for him to access his files or even 24 communicate with us regarding these motions, 25 I am ineffective to proceed. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788125 15 1 I haven't had a chance to go forward 2 with him in the three-day turnaround time on 3 these motions. It's left me in an 4 uncompromising position where I either have to disobey an order of this court or provide 6 ineffective assistance to my client. 7 Basically right now as we stand on many 8 of these motions that Mr. Scarola would like 9 heard today, as you have noticed by the 10 notice of hearing he filed for today, I have 11 little to no ability to really get into the 12 issues with my client to discuss what is 13 needed to go forward, much less prepare for 14 them, in light of the very short turnaround 15 time and the holidays that fell within those 16 dates. 17 THE COURT: Okay. Mr. Scarola. Thank 18 you, Ms. Haddad Coleman. 19 MR. SCAROLA: Your Honor, with regard 20 to the hearing at which Mr. Edwards was 21 represented by able counsel, at which an 22 agreement was reached before the Court that 23 a deadline would be established of 24 September 25 to file pretrial motions, and 25 that both sides would have three days after Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788126 16 1 September 25 in which to file responses, the 2 Court expressly stated there would be no 3 replies that would be filed, and that the 4 issues joined by those motions filed by September 28th and responded to -- excuse me 6 by September 25 and responded to three days 7 later, by September 28th, would be heard 8 today. 9 This case has been pending since 2009, 10 and none of the issues that are raised in 11 any of the matters pending before Your Honor 12 are issues that come as a surprise to 13 anyone. 14 Indeed, the interrelationship between 15 the assertion of Fifth Amendment rights and 16 the ability to proceed with the prosecution 17 and defense of claims on Mr. Epstein's part 18 has been a primary focus of determinations 19 to be made by the Court since the filing of 20 our motion for summary judgment on 21 Mr. Epstein's claims against Mr. Edwards, 22 which were set for hearing. 23 And on the eve of that hearing, with no 24 response filed to that motion for summary 25 judgment -- a primary focus of which was you Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788127 17 1 cannot use the Fifth Amendment as both a 2 sword and a shield -- you cannot file a 3 claim for RICO violations for criminal 4 actions arising out -- excuse me -- for 5 civil relief arising out of criminal 6 actions, for fraud, for abuse of process and 7 malicious prosecution, knowing that you 8 intend to hide behind the Fifth Amendment 9 with regard to issues central to those 10 claims. 11 Those issues were raised years ago and 12 they have continuously arisen at every stage 13 of this proceeding when discovery was sought 14 from Mr. Epstein. And knowing about those 15 problems he has chosen to hide behind the 16 Fifth Amendment. 17 So there's nothing new here. And quite 18 frankly, I am amazed that opposing counsel 19 keeps referring to Mr. Scarola's team of 20 lawyers when Your Honor is well aware that 21 there have been many, many, many lawyers 22 involved in the defense of Mr. Epstein for 23 many years. And Mr. Epstein has all of the 24 resources necessary to be able to respond in 25 a timely fashion to the legal issues present Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788128 18 1 in this case. 2 These are legal issues. They don't 3 require further testimony from Mr. Epstein. 4 And the excuse that there was a 5 hurricane that swept through the Virgin 6 Islands many weeks ago when allegedly 7 Mr. Epstein's home was destroyed, and 8 Mr. Epstein had every ability to come to 9 Palm Beach County, Florida, to consult with 10 his lawyers, if they felt that was 11 necessary, those assertions, in the absence 12 of any supporting affidavit, any 13 presentation of any evidence whatsoever, 14 ought not to sway this court from abiding by 15 the terms of an agreement that was entered 16 into with knowledge of all of those things. 17 That hurricane didn't happen between 18 the time that Your Honor held the last 19 hearing in this case and September 25th. It 20 did not occur between September 25th and 21 September 28th. All of those factors that 22 they are now complaining of existed at the 23 time that that agreement was entered into. 24 THE COURT: Thank you. 25 MR. SCAROLA: Thank you, sir. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788129 19 1 MR. BREWER: Your Honor, may I respond 2 since it's been stated that I agreed -- 3 THE COURT: Sure. 4 Who else is sitting with you? 5 MR. GOLDBERGER: Your Honor, this is 6 Mr. Darren Indyke, who is in-house counsel 7 to Mr. Epstein. 8 THE COURT: Darren? 9 MR. GOLDBERGER: Indyke, I-N-D-Y-K-E. 10 THE COURT: Thank you. Welcome. 11 MR. BREWER: Your Honor, I want to 12 speak to the statement agreement inchoate. 13 When we appeared before you on September the 14 15th -- that was the date of the hearing 15 we had asked the Court to give us a date to 16 hear our motion for summary judgment. We 17 appeared at calendar call for that 18 discussion. 19 At that time there was pending our 20 motion for summary judgment. There was a 21 motion that was filed by Mr. Scarola that 22 went to net worth of Mr. Epstein, and it 23 merely said objections not well taken, which 24 is a nullity of the pleading. 25 And the night before -- you might Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788130 20 1 remember the colloquy where Mr. Scarola said 2 that he was going to be filing a motion to 3 strike. And he, at the time, thought it 4 hadn't been filed yet, but in fact I complimented his assistant and said, No, she 6 did get it in late yesterday afternoon. It 7 was filed late on the 14th of September. 8 That's what was pending. 9 We discussed with the Court the fact 10 that we were preparing a motion in limine. 11 It goes to many of the issues, really, at 12 the heart of this thing. The statement was 13 made to the Court that we thought that we 14 could get that motion in -- we were 15 preparing and thought we could get it in the 16 next week. 17 THE COURT: Which was done? 18 MR. BREWER: Which was done. Since 19 that time -- and I counted -- there had been 20 21 motions in other matters filed, which we 21 had no idea about. And to sit there and 22 say, Oh, we agree to this deluge of 23 discovery and motions is just not correct. 24 THE COURT: I really wasn't 25 contemplating a significant number of Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788131 21 1 motions to be filed on the 25th of 2 September. I used that as a deadline so 3 that anything could be cleaned up and 4 prepared and proceed accordingly. 5 So, a couple of things -- you can have 6 a seat, Mr. Brewer. Thank you very much, 7 sir. 8 Number one, I don't want to be accused 9 of being insensitive to those who have 10 suffered through the recent storms, nor do I 11 want to be accused of being insensitive to 12 the fact that Jewish holidays fell within 13 the time period at issue. But at the same 14 time, the information, at least that is 15 contained in the documents that I have 16 reviewed, for example, reflect Mr. Epstein's 17 access to airplanes. There's been no 18 suggestion -- I don't know one way or the 19 other whether or not there is access to 20 airplanes at this point in time. 21 Again, I agree with Mr. Scarola there 22 was no -- has been no factual recitation in 23 the form of an affidavit or declaration that 24 was submitted to support any of these 25 opinions. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788132 22 1 Also, while I eminently respect choice 2 of counsel, at the same time there has not 3 been any demonstration that, for whatever 4 reason, Mr. Epstein does not have the wherewithal economically to be able to have 6 sufficient representatives so as to fortify 7 lead counsel in the preparation and defense 8 of the -- in preparation of any written 9 materials or in the defense of the subject 10 claim. 11 So again, while I have personal empathy 12 for anyone who is a sole practitioner, that 13 is not my choice. That is the choice of a 14 sophisticated business person in the form of 15 Mr. Epstein, who again, to my knowledge, and 16 totally from what I have read in the 17 materials and his agreement, at least at one 18 point in time, to stipulate to a significant 19 net worth. 20 There is no suggestion of economic 21 hardship so as to limit his choice of 22 lawyers or law firms, lawyers or law firms 23 that have sufficient resources to be able to 24 respond instantaneously to many of the 25 arguments that were raised by way of the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788133 23 1 motions filed on September 25th. 2 However, with that said, because we 3 really weren't anticipating -- I wasn't 4 anticipating, I should say -- multiple motions being filed at the very end of the 6 deadline, we will take those on a 7 matter-by-matter basis. And if I find that 8 they are not purely legal in nature and 9 would require some type of additional 10 factual development, then I will take that 11 into consideration. 12 The reason I set this a couple of 13 months before trial was to try my best to be 14 able to streamline between now and then what 15 may be necessary and properly address any 16 pretrial issues so that we can hopefully 17 resolve as many of those that we can before 18 the commencement of trial and not during 19 trial, which is when appellate courts have 20 been loathed to allow the trial courts to 21 take valuable time away from those who are 22 mostly volunteering their time -- that being 23 the jury -- and engaging in lengthy motion 24 practice during the time that the jury is 25 seated. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788134 24 1 As I said, I would like to begin with 2 Plaintiff/Counter-Defendant Epstein's motion 3 for summary judgment on Defendant/ 4 Counter-Plaintiff Edwards' fourth amended counterclaim. Let's proceed. 6 MR. SCAROLA: Your Honor, the first 7 issue raised with regard to that motion is 8 the argument that that motion is precluded 9 by virtue of collateral estoppel. And 10 Mr. Burlington res judicata -- excuse me 11 Mr. Burlington is here to address that. 12 If it's easier for the Court, I have an 13 extra copy of the motion that I can hand to 14 Your Honor. 15 THE COURT: Okay. Thank you. 16 MS. HADDAD COLEMAN: Your Honor, just 17 for the record, again, that motion from 18 Mr. Burlington was filed on the 28th, and 19 our motion for summary judgment was filed 20 June 30th. And the other two motions 21 directed at our motion for summary 22 judgment -- one of which is to strike 23 Mr. Epstein's affidavit, and another one is 24 in opposition -- again, we haven't had time 25 to go over or prepare for. These are Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788135 25 1 brand-new arguments that -- 2 THE COURT: I wouldn't expect you to. 3 It was actually filed on the 25th, not on 4 the 28th, but I haven't seen it. 5 MR. SCAROLA: Your Honor, that is in 6 fact, a motion to which a response has been 7 filed. 8 I can hand that to Your Honor as well, 9 if you would like. 10 THE COURT: Sure. That's fine. Thank 11 you. 12 MR. SCAROLA: Here you go, sir. I am 13 not sure what the objection is, since this 14 is a motion filed on the 25th. It was 15 responded to on the 28th, so it would appear 16 that it is ready to be argued today. 17 THE COURT: I have no problem. It is 18 simple, so let's proceed. 19 MS. HADDAD COLEMAN: Judge, I am just 20 trying to find it. I apologize. There's so 21 many filed. 22 THE COURT: Whenever you're ready step 23 up to the podium please. Thanks. 24 I would rather first hear the substance 25 of the motion, then we will listen to the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788136 26 1 motion to strike. 2 MS. HADDAD COLEMAN: I'm sorry? 3 THE COURT: I would like to hear from 4 you first on the substantive aspects of the motion, then I will listen to the motion to 6 strike. I believe the counter-argument, if 7 you will, or the arguments to defeat the 8 motion are partly substantive, partly 9 procedural. 10 MR. SCAROLA: Your Honor, in case the 11 Court is keeping track of these, the motion 12 for summary judgment was responded to by 13 Mr. Burlington in his motion that raises a 14 procedural issue with regard to res 15 judicata. 16 There's also a motion to strike 17 Mr. Epstein's affidavit, which was the 18 primary support of the motion for summary 19 judgment, and a second independent response 20 in opposition to the motion for summary 21 judgment. They are all in this group. 22 THE COURT: The motion -- strike that. 23 The response that you filed in 24 opposition was the one I concentrated on 25 during my review of the motion. I tried to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788137 27 1 match both up to the other. I now see that 2 I did have the motion from Mr. Burlington 3 and the response from Ms. Haddad Coleman. 4 MS. HADDAD COLEMAN: Judge, the motion to strike the affidavit, the June 30th 6 affidavit to summary judgment, that motion 7 filed by Mr. Scarola -- again within this 8 time frame, which we were forced to operate 9 in -- is solely based on the Fifth 10 Amendment. It's a huge argument about the 11 Fifth Amendment, Judge. And I am about a 12 third of the way complete with it, but it 13 was requiring me to go through the 14 deposition of Mr. Epstein. And I can submit 15 and proffer to the Court that I'm only up to 16 page 33 of Mr. Epstein's deposition. But he 17 substantively answered all questions that 18 were related to this lawsuit. 19 THE COURT: Let's go ahead and proceed 20 with the substance of the motion and we will 21 go from there, please. 22 MS. HADDAD COLEMAN: Good morning, 23 Judge. Jeffrey Epstein's motion for summary 24 judgment is based on a very simple issue 25 that was not addressed by this Court in a Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788138 28 1 previous motion or on the appellate level, 2 and that is the issue of probable cause. 3 As this court is aware, there are 4 several elements that must be proven by Mr. Edwards in order for him to prevail on a 6 case of malicious prosecution. So what is 7 relevant and germane to this issue of 8 probable cause is that it's a very low 9 threshold, and it's very easily satisfied by 10 Mr. Epstein. 11 And Mr. Epstein had probable cause at 12 the time he filed his complaint against 13 Mr. Edwards. 14 Contrary to Mr. Edwards' assertions 15 that everything that has been laid out in 16 this case, since 2009, Mr. Epstein filed 17 suit against Mr. Edwards, Scott Rothstein 18 and LM, based on the undeniable and 19 inconvertible facts of what was transpiring 20 at RRA specifically with what will be 21 referenced as the Epstein cases during the 22 time in question. 23 As this Court and everyone in this room 24 is aware, in November 2009 it became 25 national news that Scott Rothstein was the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788139 29 1 named partner of Rothstein, Rosenfeldt, 2 Adler -- a firm which Brad Edwards, at the 3 time, was part of -- in funding the largest 4 Ponzi scheme in history. It was also known -- Judge, if you look 6 through our motion -- I just want to point 7 out to the Court and put on the record every 8 single undisputed fact to which we refer -- 9 there is a citation -- and the documentation 10 is provided to you -- that supports these 11 undisputed facts. It is not just the 12 affidavit of Jeffrey Epstein, although, that 13 is also listed herein. 14 Part of that Ponzi scheme is that 15 Rothstein and his partners and other 16 coconspirators who were not determined at 17 the time this lawsuit was filed, or at the 18 time the federal government became involved 19 to prosecute Mr. Rothstein, that they were 20 defrauding investors into purchasing fake 21 settlement agreements or inflated settlement 22 agreements that were being litigated with 23 cases by RRA. One of those cases, 24 Mr. Epstein and the rest of the United 25 States became aware, were the cases that Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788140 30 1 were being pursued by Mr. Edwards and RRA 2 against Mr. Epstein. 3 In December 2009, the federal 4 government filed a 66-page -- I'm sorry -- 36-page information against Scott Rothstein 6 stating that RRA, which Edwards was a 7 partner at that time, was a racketeering 8 enterprise, and that Rothstein, his partners 9 and other named coconspirators were 10 committing crimes in order to defraud 11 investors and further their Ponzi scheme. 12 It is noteworthy to mention, Judge, 13 that subsequent to filing this motion, we 14 did file an amended supplemental list, in 15 which we've added that earlier last week -- 16 the federal government has come out and 17 stated that they are seeking to withdraw 18 their recommendation that Mr. Rothstein 19 receive a reduced sentence because he has 20 lied to the government. 21 We feel that also is important and goes 22 to the crux of what Mr. Rothstein did and 23 continued to do, even after he was caught. 24 It is important to know, Judge, through 25 these facts, if you look through the motion Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788141 31 1 that the unnamed conspirators of 2 Mr. Rothstein were people who worked with 3 Mr. Rothstein, they were being investigated 4 by the Florida Bar as well as by the federal government. 6 There was testimony given that these 7 investors and these -- and there are 8 citations to all this testimony in which 9 they were given the Epstein cases to look 10 at. Scott Rothstein and his other unnamed 11 coconspirators brought to the attention of 12 these investors the Epstein cases and 13 created outrageous allegations pursuant to 14 which they stated that because Mr. Epstein 15 had all of this money they could get the 16 defendant -- in this case, Mr. Epstein -- to 17 settle for substantial sums of money. 18 Scott Rothstein admitted to all this, 19 and was sentence to 50 years, and he's 20 currently serving that sentence. 21 Mr. Epstein also became aware during 22 that time that news reports that Rothstein 23 had been disbarred and that the Florida Bar 24 was investigating at least half of the 25 attorneys employed by RRA in connection with Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788142 32 1 this Ponzi scheme. 2 On November 20, 2009, the law firm of 3 Conrad Scherer initiated a lawsuit against 4 Rothstein and others entitled Razorback Funding, again, a copy of which is provided 6 to the Court and is relied upon as 7 undisputed facts related to the summary 8 judgment motion in which the Epstein cases 9 and the use of the Epstein cases to defraud 10 the investors is discussed at length. 11 Judge, in our motions on pages five 12 through seven, specific sections of the 13 Razorback complaint is cited to the Court. 14 It states that purported settlements, albeit 15 fraudulent, were based on actual cases being 16 handled by RRA. 17 For example, one of the settlements 18 involved was based upon facts surrounding 19 Jeffrey Epstein, the infamous billionaire 20 financier. Representatives of D3 -- which 21 was the investment company -- were offered 22 the opportunity to invest in pre-suit $30 23 million court settlements against Epstein 24 involving different underaged female 25 plaintiffs, cases that were being prosecuted Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788143 33 1 by Brad Edwards, while a partner at RRA. 2 In addition to that, Judge, at this 3 time in question, which Mr. Edwards worked 4 at RRA -- was a partner there from April to 5 November 2009, Judge. A very small period 6 of time. 7 There were several filings in federal 8 court which raised suspensions of 9 Mr. Epstein, his attorneys and the 10 government. 11 For example, there were some filings 12 about dignitaries and other parties being on 13 Mr. Epstein's planes. One of the plaintiffs 14 for whom Mr. Edwards was prosecuting cases 15 against Edwards (sic) had ever made 16 allegations such as that. 17 Further, according to the defrauding of 18 investors, the Epstein cases -- there's 19 several discovery practices and motions that 20 were filed to salaciously sexually charge 21 the nature of the facts and make it 22 explosive that will truly convince investors 23 that Epstein would in fact be quick to 24 settle these cases. 25 Also during that time, Judge, what Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788144 34 1 Mr. Edwards did in the federal cases 2 personally as legal counsel or lead counsel 3 on those Epstein cases -- again, as a 4 partner of RRA -- there was a filing of a 5 federal claim for LM, who was a plaintiff in 6 this case filed in federal court against 7 Mr. Epstein based on the same exact 8 allegations of facts and circumstances that 9 were filed in the state court, but then 10 salaciously embellish some of the facts. 11 And again, this complaint was never 12 served on Mr. Epstein, but it was shown to 13 the investors, and there is testimony to 14 that fact. 15 Then Mr. Edwards filed a motion. It 16 was a motion asking that the court -- Judge 17 Marra -- federal district court -- to enter 18 a bond -- enter an order requiring 19 Mr. Epstein to post a multi-million-dollar 20 bond. Judge Marra threw that out, stating 21 that there was no basis in fact. 22 Judge, that was in Doe versus Epstein, 23 08-80893 in which the Court said there was 24 no basis in fact for it. 25 This motion went through such detail Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788145 35 1 delineating the financial net worth of 2 Mr. Epstein. And again, this was solely 3 that very small time period during which 4 Mr. Edwards was a partner RRA, and during 5 which the Epstein cases were being used to 6 defraud investors. 7 This is the information known to 8 Mr. Epstein at the time he chose to file 9 suit. Contrary to what Mr. Edwards is 10 trying to do, and the information he tries 11 to bring forth in this Court, if the Court 12 looks at the initial complaint that 13 Mr. Epstein filed, it clearly delineates 14 solely these facts upon which he relied, as 15 does Mr. Epstein's deposition testimony -- 16 which we were prepared again in response in 17 opposition to Mr. Scarola's motion to 18 provide to this court. These facts show 19 what was in Mr. Epstein's mind at the time 20 he filed this suit, at the time he sought 21 counsel, attorneys to file this suit on his 22 behalf. 23 He testified he read about this case in 24 the Daily News. His affidavit delineates 25 all the facts upon which he replied. And Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788146 36 1 even if the Court didn't look to 2 Mr. Epstein's affidavit, which we submit is 3 consistent with his deposition testimony, 4 his response to certain discovery requests, the undisputed facts available at the time 6 he filed suit, the indictment of Scott 7 Rothstein, every report in which it's 8 discussed what Mr. Edwards and RRA were 9 doing in these Epstein cases, as well as the 10 filings in the federal court, and the 11 Razorback complaint itself, which was one of 12 the largest settlements in Broward County, 13 and it did, in fact, was one of the things 14 upon which Mr. Rothstein relies in trying to 15 get his sentence reduced, was if those 16 investors were able to get all of their 17 money back. 18 The Razorback complaint was a 19 successful suit. And at the time 20 Mr. Epstein filed the suit, that was the 21 case that was filled just before he did. 22 THE COURT: What I was going to ask, 23 though, is remember that this case was filed 24 not only against Mr. Rothstein, but against 25 Mr. Edwards. The focus really has to be on Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788147 37 1 the probable cause issue pertaining to 2 Mr. Edwards. Perhaps that's a reason why 3 Mr. Rothstein did not counterclaim or filed 4 his own malicious prosecution case, was the focus has to be on Mr. Edwards. 6 MS. HADDAD COLEMAN: Yes, Judge. And 7 at the time Mr. Epstein filed suit against 8 Mr. Edwards, Mr. Edwards was the lead 9 counsel of these cases. Mr. Edwards signed 10 every pleading. Mr. Edwards, pursuant to 11 Florida Bar rules and his ethical duties as 12 a lawyer, is charged with knowledge of what 13 is transpiring in his cases. 14 Mr. Edwards, during this relevant time 15 period, was prosecuting these cases. 16 Mr. Edwards engaged in discovery practices. 17 Mr. Edwards signed pleading practices. 18 Mr. Edwards engaged in these acts. 19 Judge, it's important to note, again, 20 it's very easy to sit here and Monday- 21 morning quarterback in 2017. 22 In 2009, and as late as 2012, the 23 federal government was still saying, 24 unknown, unnamed, unindicted coconspirators. 25 Judge, even the federal government was Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788148 38 1 unsure who was involved at that time. 2 Again, it's very easy to sit back later 3 and say Mr. Edwards wasn't involved. But 4 the information available to Mr. Epstein at 5 the time -- which is solely the time period 6 germane to when he filed suit -- was that 7 Mr. Edwards' name appeared on all these 8 pleadings. Mr. Edwards was engaging in 9 discovery. Mr. Edwards was seeking to 10 depose David Copperfield and Donald Trump 11 and Bill Clinton when his clients had never 12 alleged they were on planes with them. 13 If you look at all of these facts in 14 2009, coupled with a criminal investigation, 15 the largest Ponzi scheme in Florida history, 16 and the government saying unknown and 17 unindicted coconspirators, including the 18 fact that the Florida Bar was investigating 19 over half of the attorneys, and that 20 Mr. Edwards himself was a partner at that 21 firm. 22 His business cards, his letterhead, 23 everything said Brad Edwards, partner, RRA. 24 That is the information at the time. 25 Mr. Rothstein might have chosen not to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788149 39 1 file against Mr. Epstein. I have no idea 2 and I can't speak to that. But I can tell 3 you at the time Mr. Epstein filed suit, the 4 undisputed facts known to him at that time clearly and unequivocally showed that what 6 was transpiring in the cases that were being 7 prosecuted against him by Mr. Edwards and 8 his law firm, at which he was a partner, 9 were used to fleece money and defraud 10 investors. And that based on what was 11 transpiring in those Epstein cases from 12 April to November 2009, while Mr. Edwards 13 was a partner at RRA, gave the requisite 14 probable cause to Mr. Epstein to believe 15 that these cases were used to do this and 16 that it did cause him damage. 17 THE COURT: That assumes -- as both 18 sides have talked about the issue of 19 undisputed facts -- that assumes that these 20 facts are undisputed, because the case law 21 has well established what facts and 22 circumstances constitute probable cause is a 23 pure question of law. Whether they exist is 24 a pure question of fact. And I will omit 25 the citations. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788150 40 1 And it says, Question of whether 2 probable cause exists is thus a jury issue, 3 only when material facts are in controversy. 4 So speak to me about that, please. MS. HADDAD COLEMAN: Judge, the 6 inconvertible facts -- again, at the time 7 this was going on, Mr. Edwards filed 100 -- 8 let me look to see how many pages it was 9 I apologize. It's in my motion -- filed a 10 federal complaint against Mr. Epstein, 11 again, for plaintiff LM, when the LM lawsuit 12 was already pending. That complaint was -- 13 and again, that's undisputed. He did it. 14 Judge -- 15 THE COURT: Really, I guess what I'm 16 speaking about, Counsel, is more so mindset. 17 In other words, what you're suggesting to me 18 today is that Mr. Edwards, without, to my 19 knowledge -- and please correct me if I'm 20 wrong -- but without, to my knowledge, 21 anything but pure supposition at this 22 juncture, even eight years later -- 23 MR. SCAROLA: Excuse me. Your Honor 24 said Mr. Edwards, and I think you meant to 25 say Mr. Epstein. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788151 41 1 THE COURT: No. I meant to say 2 Mr. Edwards. 3 MR. SCAROLA: I apologize for 4 interrupting then. 5 THE COURT: That's okay. Not a 6 problem. 7 -- but simply at this juncture, eight 8 years later, that somehow Mr. Edwards had 9 the mindset that you are suggesting. And 10 you may be right. I'm not necessarily 11 saying or taking a position one way or the 12 other as to whether you are right or wrong, 13 but the proposition that you are espousing 14 is one of Mr. Edwards having the mindset 15 back whenever this federal case was filed, 16 to file it in a manner that would have been 17 disingenuous and contrary to the state case 18 that was filed. 19 And that, to me, raises factual issues 20 in and of itself, does it not? Because, 21 again on the one hand we don't know -- for 22 example, there has been no deposition 23 testimony provided to the Court of 24 Mr. Edwards where he said, Yes, I am going 25 to fall on my sword and admit to you that I Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788152 42 1 filed this federal case as a rouse to 2 inflate the value of these factored cases. 3 You smile because the suggestion that 4 Mr. Edwards is going to admit to this is 5 probably very, very slim. But at the same 6 time what I'm trying to suggest to you is 7 the fact that when you're injecting a 8 mindset -- you may be very, very correct 9 based upon the facts that are involved here. 10 You may be -- you may be able to convince 11 the members of the jury about that. But I 12 don't see where, under these facts and 13 circumstances, the facts are so crystalized 14 so as to yield but one result here. 15 In these cases that I have reviewed, 16 most of them deal with false arrest issues. 17 And the facts aren't terribly controverted. 18 There were arrests made. There were videos 19 reviewed, and was there probable cause based 20 upon that black and white video, the fact 21 that the arrest was made, the report that 22 was made, and the glowing threshold that's 23 associated typically with probable cause 24 analysis. 25 So I don't have a problem with your Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788153 43 1 position in terms of what you are stating to 2 me. But my concern is that the factual 3 issues that may still be -- might be 4 uncontroverted is raised by what you've just indicated. Was it Mr. Edwards' mindset to 6 file these federal claims -- one or more 7 federal claims to bolster the Ponzi scheme 8 that Rothstein was later convicted on, or 9 did he have another motive to do so, or was 10 there another reason to do so? I don't know 11 that, because there hasn't been, to my 12 knowledge -- again, please correct me if I'm 13 wrong -- is there anything in the record 14 that would support that conclusion, other 15 than the argument to say, Well, it was 16 Edwards' mindset to do that to inflate the 17 value of the Ponzi scheme, when, to my 18 knowledge, Edwards has never been charged? 19 He's not, to my knowledge, an unindicted 20 coconspirator. 21 Rothstein, at best, was equivocal in 22 his deposition. And to what extent we can 23 believe what he said, I agree with you, it's 24 suspect, at best, based upon the recent 25 charges that he has accumulated. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788154 44 1 But at best, what Rothstein is saying 2 is that maybe Edwards would have turned him 3 in. He was unequivocal about many of the 4 other people in his firm. 5 So that's what I am trying to figure 6 out. What is the undisputed fact, and can 7 there be undisputed facts when we are 8 speaking about the mindset of an individual 9 and the motive that one may have had where 10 it's not explained, to my knowledge, one way 11 or the other. 12 MS. HADDAD COLEMAN: I will speak to 13 all of that. I will start with your most 14 recent question first. 15 Judge, Mr. Edwards -- although he does 16 like to get up here and espouse how 17 Mr. Epstein hides behind privileges three 18 of our motions filed today before this court 19 for consideration were motions to compel 20 Mr. Edwards to answer questions in his 21 deposition and his interrogatories. 22 Every question -- every single solitary 23 question posed to Mr. Edwards when asked why 24 he did everything he did in the Epstein 25 cases, he asserts work product or claims Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788155 45 1 privilege and refuses to answer the 2 question. 3 THE COURT: I am here all the time to 4 be able to take care of those matters. If there's ever a need for time, you know that 6 if I have it, I give it to you. So, you 7 know, this has been going on a long time. 8 And I recognize that some of these matters 9 are unresolved. But unresolved matters are 10 probably the most dangerous grounds to grant 11 summary judgment for the trial judge. 12 MS. HADDAD COLEMAN: My second point, 13 which would go right to you granting summary 14 judgment, I can't offer you what was in 15 Edwards' mind because Edwards doesn't tell 16 US. 17 With respect to the standard for 18 probable cause for summary judgment, why 19 Edwards did what he did really isn't 20 relevant, Judge. It's a question of 21 probable cause. The burden of proof is on 22 Edwards, not Mr. Epstein. 23 Mr. Epstein was germane to the issue 24 right now before this court. And whether or 25 not Mr. Epstein had probable cause to file Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788156 46 1 suit is what was in Mr. Epstein's mind. 2 And what was in Mr. Epstein's mind is 3 based on what, we submit to this court, are 4 incontrovertible facts. It is an incontrovertible fact that 6 Mr. Edwards filed a 234-page, 156-count 7 federal complaint on behalf of LM when the 8 identical case was pending in state court. 9 Fact. Fact, he never served it on 10 Mr. Epstein. Fact, federal court dismissed 11 it. Fact, it was shown to investors, and it 12 was filed three days before the order coming 13 down on RRA. That is what Mr. Epstein knew 14 at the time, to answer your question about 15 that complaint. 16 If the Court would like to ask me about 17 any of the other facts, I would be happy to 18 address those as well, but the law is clear 19 that the probable cause -- the only issue 20 for this court to consider -- is not why 21 Mr. Edwards did what he did. It's what was 22 in the mind of Mr. Epstein at the time he 23 filed suit. And what was in the mind of 24 Mr. Epstein at the time he filed suit is 25 delineated in the first eight pages of our Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788157 47 1 motion and is supported by pleadings in 2 courts, orders from federal judges, 3 statements from other people involved in the 4 cases, and in the pleadings provided by 5 Mr. Edwards himself. 6 If Mr. Edwards had a reason that he did 7 all of these things, he certainly has never 8 provided it to us. 9 THE COURT: Okay, thank you. I will 10 give you some time to rebut. I appreciate 11 your presentation, both written and oral. 12 Thank you, Ms. Haddad Coleman. 13 Counsel for Mr. Edwards. 14 MR. SCAROLA: Yes, Your Honor. We 15 would like to begin with Mr. Burlington's 16 arguments that these matters are foreclosed 17 as a consequence of prior Kelly proceedings. 18 THE COURT: All right, Mr. Burlington. 19 Welcome. 20 MR. BURLINGTON: Phil Burlington on 21 behalf of Counter-Plaintiff Edwards. 22 We filed a separate motion to strike in 23 response to the summary judgment, based on 24 law of the case. We did it as a separate 25 motion because, otherwise, they would not Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788158 48 1 have had an opportunity to respond, because 2 your order and the agreement provided for no 3 replies. 4 You can treat this as a motion to strike. You can treat it as a basis to deny 6 the motion. But what is very clear is, you 7 previously ruled on the summary judgment 8 hearing -- and it is three and a half years 9 ago, so all of us who have not lived with 10 the transcript can be understood for not 11 remembering. But Epstein moved for summary 12 judgment on three grounds: litigation 13 privilege that the Wolfe case compelled 14 with, and also that we were unable to prove 15 two elements of the malicious prosecution 16 claim. One of them was lack of probable 17 cause, and the other was bona fide 18 termination. 19 Your Honor felt bound by the Third 20 District's decision in Wolfe, but you did 21 point out, rather clearly in the transcript, 22 that you felt there were questions of fact 23 that barred summary judgment for both the 24 probable cause and bona fide termination. 25 And I'm reading from page 24 of that Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788159 49 1 transcript of January 27th, 2014. And you 2 state, I would not grant the motion because 3 of at least these two reasons, that I 4 believe there are questions of fact related to the probable cause issue, as well as the 6 bona fide -- and they have determination. 7 Should be termination issue, additionally. 8 And after a little colloquy, you say, That's 9 why I want to make clear that, standing 10 alone, the elements of the malicious 11 prosecution claim will not muster summary 12 judgment in my view. 13 So that was your ruling. You found on 14 the litigation privilege. You rejected the 15 summary judgment on probable cause and bona 16 fide termination. We filed an appeal. That 17 case was briefed. And prior to the oral 18 argument, the Fourth District rejected the 19 Wolfe case. 20 Now, what happened in the briefing in 21 our case is our initial brief addressed 22 solely litigation privilege, because that 23 was the only basis on which you ruled. 24 In their answer brief, they had a 25 footnote in which they said, Well, we also Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788160 50 1 moved on other grounds, and we hereby 2 incorporate all of our argument from our 3 motion for summary judgment as an 4 alternative basis for affirmance, which is 5 known as the Tipsy Coachman doctrine. I 6 filed a replay, and I said they have not 7 properly raised the Tipsy Coachman 8 arguments, because you can't just do it in a 9 footnote and incorporate a trial pleading. 10 That is where it stood. 11 And then the Fourth District ruled on 12 Fischer. At that point, I moved to dispense 13 with oral argument, Epstein moved to file 14 supplemental briefs -- excuse me -- a 15 supplemental brief. And what he wanted to 16 file a supplemental brief on was the 17 probable cause issue. And in his motion he 18 talks about how this will give him an 19 exception to the Fischer decision, and also 20 specifically says, We properly raise this as 21 a Tipsy Coachman argument. 22 I am reading from page six. He says, 23 "The court has respectfully requested to 24 afford Epstein the opportunity to file a 25 supplemental argument to show that the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788161 51 1 litigation privilege applies under the rule 2 announced in Fischer, because the element of 3 absence of probable cause is not satisfied 4 in Edwards' action for malicious prosecution." 6 His next sentence, "The missing element 7 in Edwards' malicious prosecution action is 8 also properly before this court as a ground 9 for affirmance under the Tipsy Coachman 10 doctrine." 11 Now, they take the position in their 12 response to my motion here, Oh, no, it was 13 never properly raised. And now they 14 supposedly admit that. But this is what 15 they argued to the court. And they said 16 Epstein did note in his answer brief for 17 alternative grounds for affirmance, and he 18 reasserted all of them in the motion for 19 summary judgment. 20 I opposed this motion for supplemental 21 briefing saying it was improper on the eve 22 of oral argument, and that, in fact, the 23 Tipsy Coachman arguments had not been 24 properly raised. The Fourth District 25 dispensed with oral argument, issued it's Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788162 52 1 decision, and agreed as to my argument that 2 the Wolfe case was wrongly decided and 3 refused to follow it. 4 However, they rejected my position that the Tipsy Coachman argument was not properly 6 before them. And in their very short 7 opinion, they have one paragraph that says, 8 "Epstein suggests that this case could be 9 decided on a Tipsy Coachman analysis, as he 10 alleges that all the elements" -- plural -- 11 "on the cause of action were not present. 12 "However, the trial court specifically 13 found that material issues of fact remain as 14 to the elements of the claim based upon the 15 facts presented and the inferences which 16 might be drawn from those facts. We will 17 not disturb the trial court's evaluation." 18 So therefore, the Fourth District not 19 only ruled on the litigation privileged 20 issue, but despite my argument that Tipsy 21 Coachman hadn't been properly raised, they 22 addressed it on the merits -- spoken 23 plural -- because there's no bona fide 24 termination and lack of probable cause. And 25 they rejected their arguments, and that is a Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788163 53 1 determination of law. 2 As we have cited, there's cases that a 3 determination of whether there's a material 4 issue of fact is subject to the law of the case doctrine, and therefore this court 6 should not be entertaining the merits of 7 this. The law is determined by the Fourth 8 District and under the law and case 9 doctrine. And Juliano is the Florida 10 Supreme Court case that establishes that any 11 determination of law made by an appellate 12 court is binding through all subsequent 13 proceedings. And that's what we are saying 14 here. Is they are trying to reargue what 15 you already ruled on, what the Fourth 16 District already ruled on. 17 And their only argument against it is 18 claiming that I am somehow estopped because 19 I argued in response to their motion for 20 supplemental briefing in the Fourth District 21 that they had not raised the issue of lack 22 of probable cause properly in their brief. 23 But that cannot in any way affect the 24 law of the case, because the Fourth District 25 rejected my argument on that. But they Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788164 54 1 rejected their argument on the merits, and 2 there's no basis now to start this all over. 3 And I just want to read one other 4 statement that they've represented to the Court in the Fourth District as to their 6 Tipsy Coachman issue and why the Court 7 should address it. 8 The resolution probable cause issue in 9 this appeal also serves the interest of 10 judicial economy, as it would be a waste of 11 time, expense and resources to reverse and 12 remand for a trial if a judgment entered in 13 favor of Edwards would be subject to 14 reversal on a ground this court can now 15 resolve. 16 Now they are here engaging in the exact 17 waste of time, expense and resource, which 18 they've said that the Fourth District could 19 avoid by ruling on the probable cause issue. 20 So, respectfully, they got what they 21 wanted on the ruling on the alternative 22 grounds. It was heard on the merits but the 23 Fourth District rejected it, as you had 24 previously. And there's no basis, there's 25 no change in the facts, and therefore, Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788165 55 1 there's no basis to deviate. 2 In fact, respectfully, I don't think 3 you have the authority to deviate from what 4 the Fourth District said, which was that you 5 were right in the first place. 6 So therefore, we believe it's 7 unnecessary to spend all of this time on the 8 summary judgment. It should either be 9 stricken or denied based on the law of the 10 case. 11 THE COURT: Okay. Thank you, 12 Mr. Burlington. 13 MR. BREWER: Your Honor, may I respond 14 to that motion? 15 THE COURT: Sure. 16 MR. BREWER: Your Honor, I have read 17 the transcript of what you had to say with 18 regard to the probable cause issue when I 19 argued for the motion for summary judgment. 20 And you did make the statement, I believe, 21 that there are issues as to material fact. 22 You were clearly, though -- you had read the 23 Wolfe case, and you saw that this was it 24 was clear as day. 25 THE COURT: I'm not taking issue with Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788166 56 1 you there, Mr. Brewer. When I saw the Wolfe 2 case, I read it carefully. I remember 3 Mr. King was here on behalf of Mr. Edwards, 4 as was Mr. Scarola. And I asked Mr. King 5 certain pointed questions that I thought 6 were relevant to the findings made by the 7 Third District Court of Appeal in Wolfe, and 8 found that essentially all of the material 9 issues that were decided by Wolfe were 10 clearly present in this case, and as the 11 Fourth District kindly pointed out -- I say 12 that, respectfully, because the decision by 13 Judge Warner was such that it took into 14 consideration the arguments made by 15 Mr. Edwards' counsel that somehow I was 16 ruined in a fashion that was anomalous to 17 hording in on another state's rulings and 18 that my ruling was somewhat convoluted and 19 not consistent with governing law. 20 And I thought Judge Warner, as I 21 recollect, kindly, as I said, point out that 22 the court did, in fact, follow the 23 appropriate precedent in Wolfe, and that in 24 a prior opinion, the Fabricant case 25 F-A-B-R-I-C-A-N-T, I believe is the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788167 57 1 spelling -- actually, it's Fischer versus 2 Debrincat. Fischer, F-I-S-C-H-E-R. In that 3 case, they respectfully disagreed with the 4 holding of the Third District Court of Appeal. The case went up to the Florida 6 Supreme Court conflict jurisdiction, and the 7 Florida Supreme Court ended up siding with 8 the Fourth District Court of Appeal on this 9 issue. 10 So, what I had forgotten about, quite 11 frankly, until I ran into Mr. Burlington's 12 filing, was that they did comment on this 13 issue pertaining to the Court's finding -- 14 my finding -- that material facts remain as 15 to the elements of the claim. 16 Mr. Burlington has already read that 17 paragraph into the record. I am not going 18 to repeat it here. And it seems to me 19 because we as trial judges we move on to the 20 next case, with all due respect. So I don't 21 follow the machinations, for lack of a 22 better word, that go on in the district 23 court of appeal. I simply don't have time, 24 so I don't know what was being requested to 25 be heard, not being requested to be heard, Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788168 58 1 and things of that nature. 2 So it's been three years or so since 3 that decision came out. And frankly I had 4 forgotten about the fact that they commented on that particular item. So I am glad it 6 was brought to my attention. 7 But what would be the legal argument 8 that would contradict or contravene 9 Mr. Burlington's position? Because, again, 10 I fully concur, which, in part, I wanted to 11 hear Ms. Haddad Coleman argue the substance. 12 I fully concur that the focus of the 13 hearing was clearly as a result of a Wolfe 14 decision. And my concentration in that 15 hearing was to determine whether or not the 16 facts of this case fell under the Wolfe 17 holding. Finding that it did, I entered my 18 decision. 19 But again, it appears from 20 Mr. Burlington's recitation of events that 21 took place at the district court of appeal 22 level, that your client, through counsel, 23 was adamant about including this issue in 24 their briefing and in the court's decision. 25 And, in fact, the Fourth District Court of Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788169 59 1 Appeal did, in fact, decide to deal with the 2 denial of the summary judgment on those 3 alternative grounds. 4 So I feel a bit hemmed in here that, while I agree with what you are suggesting 6 to me that in fact it did transpire the way 7 it did, it was at the insistence, though, of 8 Mr. Epstein through counsel that the Fourth 9 consider the proprietary of this court's 10 denial of the motion based on factual 11 considerations pertaining to the probable 12 cause issue and perhaps, to a lesser degree, 13 the bona fide termination issue. 14 MR. BREWER: Your Honor, if I may. 15 THE COURT: Sure. 16 MR. BREWER: What has been very 17 interesting to me about this hearing thus 18 far is that we have not heard one word from 19 anyone with regard to the substantive issue 20 that is before the Court, which is are there 21 facts here that are not disputed. 22 There's been no dispute what has been 23 put before the court. 24 THE COURT: Hold on just a second, if I 25 might. If I don't interrupt -- I don't do Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788170 60 1 it disrespectfully, just that I may forget 2 what I'm going to say. That may very well 3 be. You hear the term law of the case 4 thrown around. And I am sure Mr. Burlington 5 often cringes as an appellate specialist 6 when he sees that term thrown around in the 7 trial courts by lawyers who really are not 8 accurate in terms of what they're talking 9 about as far as the cases. It's a term 10 that's used improperly almost always. 11 Here, however, is a much different 12 proposition and it does, in fact, in my 13 respectful view, constitute law of the case, 14 because -- again -- and I am going to 15 emphasize this once again -- the movant 16 here -- for the Fourth to discuss, consider, 17 and ultimately write on the proprietary of 18 the Court's decision pertaining to the 19 factual issues that remain on what -- they 20 generically speak to the elements of the 21 claim -- inclusive, of course, of probable 22 cause and bona fide termination, which the 23 court did discuss. They commented on the 24 subject and refuse to disturb the trial 25 court's findings in that respect. That is Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788171 61 1 the law of the case. 2 MR. BREWER: Can I try to persuade you 3 otherwise, Your Honor? 4 THE COURT: Absolutely. 5 MR. BREWER: You use, actually, I think 6 the correct terminology when you were first 7 referring to this as a comment. That's what 8 this is. It's a comment. 9 For it to be law of the case, the issue 10 has to have been briefed by you and decided 11 at the appellate level. What they did there 12 really is not more than dicta, because when 13 appellate counsel for Epstein attempted to 14 raise -- and he had to -- I mean the Fischer 15 vs. Debrincat case -- 16 THE COURT: Debrincat -- let's call it 17 Fischer, F-I-S-C-H-E-R. 18 MR. BREWER: Fischer had come down, and 19 clearly the court was going to follow its 20 own precedent and go with Fischer in the 21 Epstein case. So an attempt was made to 22 supplement the brief and to supplement the 23 record with regard to the probable cause 24 Tipsy Coachman well, even if the court -- 25 in the Tipsy Coachman, you are probably Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788172 62 1 aware, the court was correct in its ruling, 2 maybe not for the reasons that were 3 expressed. In other words, there was 4 another issue in the case. THE COURT: There was the WQBA. I 6 think is one of the cases. 7 MR. BREWER: In any event, that attempt 8 was made. It was denied, so it was never 9 briefed. This issue was never briefed. The 10 record was never supplemented. And they 11 make a comment that the court made a 12 statement that there were issues as to 13 material fact and they would not disturb 14 that. 15 THE COURT: No one is more sensitive to 16 dicta than I am. I was reversed recently on 17 a contention by the Fourth that the Second 18 DCA said something but didn't mean to say 19 it. Had to do with a foreclosure issue. 20 But here, again, they said what they 21 said. And I will read it into the record so 22 that it is clear. Quote, Epstein suggests 23 that this case could be decided on a 24 contingency Coachman analysis, as he alleges 25 that all the elements of the cause of action Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788173 63 1 were not present. 2 However, the trial court is 3 specifically found that material issues of 4 fact remain as to the elements of the claim. 5 Based upon the facts presented and the 6 inferences which may be drawn through those 7 facts, we will not disturb the trial court's 8 evaluation, end quote. 9 It certainly doesn't sound like dicta 10 to me. It sounds like part of the holding 11 of the case. 12 MR. BREWER: Your Honor, let me just -- 13 if the appellate counsel had been allowed to 14 file supplemental briefs and supplement the 15 record, and the Fourth District Court of 16 Appeal then found, no, there are issues of 17 material fact as relates to the probable 18 cause issue, and therefore we refuse to 19 reverse on those grounds or whatever on 20 those grounds, if they had it before them, I 21 would agree with Mr. Burlington. It's law 22 of the case. We are flapping our gums. But 23 they didn't. They refused to have it -- the 24 supplement brief, and they refused to 25 supplement the record. And so it is not Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788174 64 1 with all due respect, Your Honor, that does 2 not rise to the level of law of the case. 3 THE COURT: We are going to have to 4 agree to disagree and remain colleagues, 5 because I've looked at the opinion. It's 6 two paragraphs. The one paragraph deals 7 with Fischer and the second paragraph deals 8 with the recited paragraph that the court 9 just entered again into the record. 10 Is that the thing in this case? 11 MR. BURLINGTON: Your Honor, when you 12 asked about the opinion, this case was a 13 tagalong to the Florida Supreme Court with 14 Fischer. And there is an order out of the 15 Supreme Court what happened after they 16 decided Fischer on the merits. And the 17 Florida Supreme Court, they issued an order 18 asking the parties 19 THE COURT: I'm sorry. My apologies. 20 I didn't mean to interrupt you. I just 21 wanted to make sure -- it was a footnote. I 22 knew that Judge Warner made a comment about 23 the court -- the trial court and says, 24 quote, The trial court properly relied on 25 Wolfe at time because that case was binding Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788175 65 1 upon the trial court in the absence of 2 interdistrict conflict. And I will omit the 3 citation. And she indicated that after the 4 trial court ruling, the court held contrary 5 in Fischer to constitute conflict that was 6 ultimately resolved by the Florida Supreme 7 Court. 8 So I just wanted to make sure that was 9 the opinion. I didn't realize it was so 10 short. I didn't recognize that, although 11 she indicated that present 12 MR. BURLINGTON: Your Honor, may I 13 interrupt you to correct something? Their 14 motion in the Fourth District was not to 15 supplemental their record. Their position 16 was the record was sufficient. Their answer 17 brief incorporated their motion for summary 18 judgment from the trial level. That's what 19 I said was insufficient. The Fourth 20 District obviously found it sufficient, so 21 they had their entire motion for summary 22 judgment, which was in the record, to 23 evaluate. 24 They could have filed a rehearing and 25 said, Fourth District, you should not have Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788176 66 1 reached this. We didn't brief it. It 2 wasn't properly presented. And that would 3 have put me in an odd position, because that 4 had been my position. But also, when it went to the Supreme 6 Court and it was a tagalong case after 7 Fischer was -- the Fischer opinion was 8 issued and they issued an order saying, Is 9 there any reason for us to review this, or 10 is it controlled by Fischer? they didn't 11 respond and say, Yes, the Fourth District 12 reached issues they shouldn't have reached. 13 They didn't do anything. They said, No, you 14 decide it, it will go back. 15 So they had two opportunities, if they 16 thought it was unfair, for the Fourth 17 District to consider the issue that they 18 repeatedly said was properly before the 19 Fourth District. 20 THE COURT: I just want to complete the 21 record for now, so, Mr. Scarola, let me hear 22 from you on substantive issues just so that 23 we can tie a bow around this matter, and I 24 can rule comprehensively as to Mr. Epstein's 25 motion for summary judgment. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788177 67 1 Did you want to add something, 2 Mr. Brewer? 3 MR. BREWER: Yes. All I wanted to 4 add -- the only issue that was before the 5 Florida Supreme Court was the litigation 6 privilege. 7 THE COURT: I am not suggesting that 8 was not the case. But the Fourth District 9 squarely dealt with the issue as decided by 10 Mr. Edwards' counsel and by the court. 11 Go ahead, Mr. Scarola. 12 MR. SCAROLA: Thank you, Your Honor. I 13 am here as driver of the Tipsy Coach. In 14 the event what we are confident is a correct 15 ruling, that as a procedural matter, these 16 issues can't be reached, as a substantive 17 matter, this motion should be denied as 18 well. 19 There are two memoranda that have been 20 filed by -- on behalf of Mr. Edwards which 21 address this motion for summary judgment. 22 The first is Edwards' motion in limine to 23 strike the June 30, 2017 affidavit of 24 Jeffrey Epstein and to exclude evidence as 25 to which discovery was withheld under claims Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788178 68 1 of privilege with incorporated memoranda of 2 law. 3 Let me very briefly see if I can 4 summarize what I believe the state of mind 5 issues relevant to the pending claim to be. 6 Jeffrey Epstein initiated this 7 litigation with the filing of a five-count 8 complaint. Those counts were Florida Civil 9 Remedies for Criminal Practices Act 10 violations, alleging that not only 11 Mr. Rothstein -- whom we can set aside for 12 all practical purposes today -- but that 13 Bradley Edwards committed securities 14 violations, criminal fraud, fraudery, 15 extortion, perjury and, quote, improper 16 litigation tactics, unquote. Those were the 17 alleged criminal practices that Mr. Epstein 18 said Bradley Edwards was responsible for 19 committing. 20 In count two, he claimed relief for 21 violation of Florida's Racketeer Influence 22 and Corrupt Organization Act -- Florida 23 RICO -- and alleged the same predicate acts 24 as the basis for the Florida RICO claims. 25 Then he alleged abuse of process. And Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788179 69 1 the foundation for the abuse of process 2 claim was, quote, improper litigation 3 tactics, unquote. 4 He alleged fraud on the basis that the claims against Mr. Epstein, then pending, 6 brought by Brad Edwards on behalf of various 7 victims of Mr. Epstein's criminal conduct 8 were, quote, an attempt to extort as much 9 money as possible from Epstein, unquote. 10 The last count was a conspiracy claim. 11 And the conspiracy claim said that the civil 12 actions were used in a, quote, unlawful, 13 improper and fraudulent manner. 14 We filed a motion for summary judgment. 15 And although Your Honor apparently did not 16 recall, Brad Edwards was deposed. He did 17 sworn testimony. 18 THE COURT: It's not that I didn't 19 recall. I was suggesting that I did not 20 receive anything from the -- from the 21 Epstein team to support their motion for 22 summary judgment based on Mr. Edwards -- 23 whatever Mr. Edwards may have said to 24 support whatever the mindset that they are 25 claiming Mr. Edwards may have had at the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788180 70 1 time he filed those federal court actions 2 that may have -- to some degree mirror the 3 pending state court action. 4 MR. SCAROLA: Yes, sir. When Mr. Edwards filed his counterclaims against 6 Mr. Epstein and filed a motion for summary 7 judgment on all of the claims that 8 Mr. Epstein has brought to support his 9 motion for summary judgment, Mr. Edwards 10 needed to provide evidence to the court, 11 record evidence that he didn't do these 12 things that Mr. Epstein alleged that he did. 13 And so he filed a very detailed affidavit, 14 and he had his deposition testimony and he 15 had the testimony of Mr. Rothstein. 16 And while Mr. Rothstein gave one answer 17 that might be interpreted as somewhat 18 equivocal, Mr. Rothstein clearly and 19 unequivocally said Brad Edwards was part of 20 the legitimate part of my law firm. He had 21 no idea what was going on with respect to 22 the Ponzi scheme. He was not involved in 23 any way, and his cases were used in that 24 Ponzi scheme without his knowledge. 25 So Brad Edwards testified to that Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788181 71 1 clearly and unequivocally. Mr. Rothstein 2 testified to that clearly and unequivocally. 3 And Mr. Edwards, in his affidavit, went 4 through every alleged impropriety in 5 connection with his prosecution of those 6 claims and detailed the basis that he had 7 for everything that he did, why he 8 subpoenaed the pilots, why he named various 9 celebrities, what the source of the 10 information was to believe that they had 11 information relating to Mr. Epstein's 12 criminal conduct. 13 Those cases that Mr. Edwards was 14 prosecuting included claims for punitive 15 damages, very substantial claim for punitive 16 damages that focus on the magnitude of 17 Mr. Epstein's wrongdoing. 18 Mr. Epstein throughout the prosecution 19 of those civil claims asserted a Fifth 20 Amendment right. He refused to acknowledge 21 that he knew any of these young women. He 22 refused to acknowledge any relationship with 23 any of them, or any other alleged victim. 24 He refused to answer questions about what 25 went on on his plane, what went on on his Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788182 72 1 private island, what was going on in New 2 York with the young women who were known to 3 have been traveling back and forth with 4 Mr. Epstein, and as to whom very substantial evidence existed that he had engaged in a 6 protracted intense pattern of not only 7 abusing these children himself, but 8 prostituting them to others as well. 9 So part of the investigation into the 10 magnitude of his wrongdoing included 11 allegations with regard to the scope of his 12 misconduct over an extended period of time, 13 over a very wide geographic basis involving 14 dozens and dozens of under-aged female 15 victims. 16 So all of that is laid out in this very 17 extensive affidavit from Mr. Edwards 18 detailing why he did what he did, including 19 why he filed a very substantial federal 20 claim at the same time that a state court 21 claim was pending, because under the terms 22 of the non-prosecution agreement that 23 Mr. Epstein somehow managed to enter into 24 with the federal government, federal claims 25 became significant because he committed to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788183 73 1 compensate victims under a federal statute. 2 So there was a basis for everything 3 that Mr. Edwards did detail in that 4 affidavit. 5 No opposition was filed to the affidavit. 6 And on the eve of the hearing on that motion for 7 summary judgment, Mr. Epstein took a voluntary 8 dismissal of every claim against Mr. Edwards. So, 9 to the -- 10 THE COURT: By the way, was the 11 voluntary dismissal only as to Mr. Edwards? 12 MR. SCAROLA: It was only as to 13 Mr. Edwards. The case against LM had been 14 voluntary dismissed earlier, as I recall it. 15 And there was a default entered with regard 16 to Mr. Rothstein, who never appeared to 17 defend against these claims. 18 So the only claim that was at issue at 19 that time was the case as to which a 20 voluntary dismissal was taken as to 21 Mr. Edwards. 22 So to the extent that Mr. Edwards' 23 state of mind has ever been an issue, that 24 issue has been resolved conclusively in 25 favor of Mr. Edwards by virtue of the motion Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788184 74 1 for summary judgment and the voluntary 2 dismissal. 3 So what we have now is a claim pending 4 against Mr. Epstein. And in order to substantiate that claim for malicious 6 prosecution against Mr. Epstein, we need to 7 be able to demonstrate that his allegations 8 were not only factually untrue, but that he 9 had no reason to believe that they were true 10 at the time he brought those claims, that 11 they were brought maliciously. 12 And malice under Florida law may be 13 either actual malice or implied malice. So 14 by proving that the allegations themselves 15 are untrue, the implication arises that they 16 were filed maliciously. 17 So part of our claim is proving that 18 all of these allegations were false. Then, 19 in order to demonstrate actual malice, we 20 can go on to show that Mr. Epstein had no 21 probable cause to believe they were true, 22 because a mistaken but good faith belief is 23 a defense to a malicious prosecution claim. 24 If Mr. Epstein can come in and say, 25 Well, now we all know that these allegations Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788185 75 1 were false, but at the time I had a good 2 faith subjective basis to believe that these 3 allegation were true. 4 Now, this is where the Fifth Amendment assertion becomes relevant, because there 6 were all sorts of things that could have 7 given rise to a suspicion on the part of 8 someone who didn't know the truth about the 9 viability of these claims because 10 Mr. Rothstein pled guilty to involvement in 11 a very widespread Ponzi scheme. 12 And one might think one might have a 13 suspicion that those who were in his law 14 firm had knowledge of what was going on and 15 participated. 16 And as Mr. Epstein claimed in his -- 17 not only in his lawsuit, but in his 18 deposition, these cases against him were 19 fabricated. They were, quote, ginned up, 20 unquote. That's the phrase he used. These 21 case were ginned up. And when asked what 22 does that mean, he said they were 23 fabricated. 24 So the truthfulness of the allegations 25 made in the complaint against Mr. Epstein Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788186 76 1 become relevant and material. Were these 2 fabricated claims, were they ginned up 3 claims, or were they true claims? 4 Now, there's one person who knew without a doubt whether these were 6 fabricated claims, ginned up claims, or 7 whether they had a true reasonable basis, 8 whether they were indeed very valuable 9 claims. And that one person was clearly 10 Mr. Epstein himself. 11 Mr. Epstein can't say I relied upon all 12 of these third-party sources to give rise to 13 a reasonable suspicion that claims were 14 ginned up, when the claims were against him 15 and he knew they weren't ginned up. He knew 16 they weren't fabricated. 17 THE COURT: I don't want to mix apples 18 and oranges. I think in my reading of the 19 pertinent testimony -- and it's a difficult 20 read because all of the objections and the 21 bantering going on between counsel -- I 22 understand a situation like this is 23 relatively sensitive. It doesn't make it 24 easy to read. 25 But in my reading of the testimony, Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788187 77 1 Mr. Epstein was taking a position, as I 2 understand it, that the ginned up claims, so 3 to speak, were not so much relating to the 4 substantive allegations of alleged abuse and molestation, but instead were ginned up or 6 fabricated or enhanced to attract the 7 investors who were involved in putting money 8 into this $30 million dollar enterprise. 9 Whereas, in the state court claim, the 10 claims were rather straightforward. The 11 damages were not mentioned, to my knowledge, 12 other than in excess of $15,000. 13 I have a vague recollection, because 14 the state court claims, coincidentally -- 15 and as I pointed out the beginning of my 16 handling of this case -- were before me in 17 another civil division before I was assigned 18 to the juvenile division. So I have some 19 significant familiarity with those cases 20 while I was in the other division. 21 But the point that was made was that so 22 that these investors, for lack of a better 23 term, would be assuaged and satisfied with 24 their monetary commitment. Those federal 25 cases were brought, ginned up, fabricated -- Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788188 78 1 MR. SCAROLA: Federal case, 2 respectfully, sir. 3 THE COURT: Then I apologize. 4 MR. SCAROLA: That's quite all right. 5 THE COURT: The federal case was 6 brought mirroring the essential allegations, 7 but going further so as to appease these 8 investors who were coming down from New 9 York, as I recollect. And the presentation 10 was by Mr. Rothstein allegedly through some 11 intervention by Mr. Adler. And as I 12 recollect, that was the substance of 13 Mr. Epstein's testimony, as it related to 14 those issues. 15 MR. SCAROLA: May I respectfully call 16 the Court's attention to the following 17 questions and the following answers which 18 indicate that, while there may have been 19 some argument along those lines, while there 20 may be allegations in the complaint along 21 those lines, that's not what Mr. Epstein's 22 testimony was. 23 THE COURT: Please feel free. It's 24 only my review -- 25 MR. SCAROLA: I understand that. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788189 79 1 THE COURT: -- and it's a lot of 2 material. 3 MR. SCAROLA: It's an extremely 4 extensive record, so I don't fault the Court in any respect at all with regard to the 6 inability to recall details. 7 THE COURT: As I said, that was -- the 8 essence of my recollection. Feel free. 9 MR. SCAROLA: Yes, sir. 10 Mr. Epstein, at page 20 of his 11 deposition, is asked specifically, "What are 12 the allegations against you which you 13 contend Mr. Edwards ginned up?" 14 He refuses to answer. Fifth Amendment 15 rights. 16 "What specific discovery proceedings 17 did Mr. Edwards engage in which you contend 18 form the basis of your lawsuit?" Refuses to 19 answer. Fifth Amendment. That's page 21. 20 Page 23, "Well, which of Mr. Edwards' 21 cases do you contend were fabricated?" 22 Fifth Amendment. 23 Page 23, "Are you now telling us that 24 there were claims against you that were 25 fabricated by Mr. Edwards?" Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788190 80 1 Refusal to answer. Fifth Amendment. 2 Page 22, "Is there anything in LM's 3 complaint that was filed against you in 4 September of 2008" -- that's the federal 5 complaint "which you contend to be 6 false?" 7 Refusal to answer. Fifth Amendment. 8 At page 73, "I would like to know 9 whether you ever had any physical contact 10 with the person referred to as Jane Doe in 11 that federal complaint." 12 Refusal to answer. Page 24. "Did you 13 ever have any physical contact with 14 Fifth Amendment. Refusal to answer. 15 Page 26. "What is the actual value 16 that you contend the claim with against 17 you has?" 18 Deposition page 26, refusal to answer. 19 Interrogatory question, "Describe in 20 your own words all interactions you have had 21 with the individual identified in this 22 action as including but not limited to 23 the dates, places, participants in, 24 witnesses to, and description of all sexual 25 activity involving Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788191 81 1 Answer to interrogatory, Fifth 2 Amendment. Refusal to respond. 3 Those are objections filed on October 4 8th, 2010. So while the defense may argue that 6 there was this parceling out of which claims 7 were alleged to be ginned up and which 8 claims were alleged to be fabricated, and 9 other claims where he's not responding, 10 that's what Mr. Epstein did. 11 Mr. Epstein made blanket assertions of 12 Fifth Amendment privilege to preclude 13 discovery into what is the heart of this 14 case. What are the claims that you allege 15 were somehow misused? 16 So if we go back to the four counts 17 that we are talking about here, at the time 18 that Mr. Epstein filed those claims he knew 19 he could not proceed with those claims for 20 four different reasons. One, because he 21 knew he was guilty. He had actual knowledge 22 of his own guilt. And we can prove that 23 through independent third parties, who will 24 testify that man abused me, used me as a sex 25 slave and prostituted me out to others. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788192 82 1 He knew that he was going to assert his 2 Fifth Amendment privilege. He knew he was 3 going to try to use the Fifth Amendment as 4 both a sword and a shield, which he could not do. 6 He knew that the litigation privilege 7 barred all of these allegations about 8 improper litigation conduct, because 9 improper litigation conduct -- it has been 10 the law of the State of Florida for a very 11 long time -- cannot form the basis of an 12 independent tort claim. 13 And most significantly of all 14 don't want to say that, because I diminish 15 by saying that, the importance of the other 16 three defenses. But Mr. Epstein was not a 17 victim of the Ponzi scheme. He suffered no 18 damage, and he knew that he suffered no 19 damage. 20 How could he have been defrauded by the 21 fact that some investor is being shown the 22 claims against Mr. Epstein? He never relied 23 upon anything Brad Edwards said. He never 24 relied on anything Mr. Rothstein said. 25 He didn't know they were saying those Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788193 83 1 things until the Ponzi scheme gets uncovered 2 and he seizes upon the Ponzi scheme as a 3 means by which to try to extort Bradley 4 Edwards into abandoning the legitimate interest of his clients or compromising 6 those interests for less than those 7 interests were worth. 8 THE COURT: Let's focus, though, on the 9 motion that's before the Court, please, and 10 that is the issue of whether or not the 11 summary judgment should be granted or 12 denied. The wisdom of Mr. Epstein bringing 13 suit in the first place is something that I 14 think is more appropriate to argue and would 15 be in respect to the motion itself. 16 MR. SCAROLA: Well, sir, what I am 17 suggesting is that all of that evidence is 18 indicative of malice on Mr. Epstein's part, 19 because since he knew that he was in fact 20 guilty, since he knew that because Brad 21 Edwards was leading an effort to set aside 22 the non-prosecution agreement -- which is 23 specifically referenced in his complaint -- 24 the non-prosecution agreement is referenced 25 in the complaint -- that's one of the things Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788194 84 1 that they want Your Honor to exclude as 2 irrelevant. 3 But a principle motive for Mr. Epstein 4 was, I need to get Brad Edwards off my back, because if he continues to prosecute the 6 Crime Victims' Rights Act case, sets aside 7 the non-prosecution agreement, I face 8 federal criminal prosecution for a wide 9 variety of crimes that could send me away 10 forever. 11 That's what that's what was a 12 significant part of his motivation. A 13 significant part of his motivation was that 14 there were 40 women who were making 15 claims -- 40 children who were making claims 16 against him civilly, and he faced an 17 enormous compensatory damage result and 18 punitive damage result as well. 19 And what's extremely significant to 20 understand is that after Mr. Epstein lays 21 all of these things out as efforts to gin up 22 the value of the claims that Brad Edwards 23 was bringing against him, he voluntarily 24 enters into a settlement of those, of each 25 and every one of those claims, as well as a Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788195 85 1 whole bunch of others. And the record 2 reflects at this point by virtue of 3 interrogatory responses that were requested 4 in the record by the defense, what the amount of those settlements were. 6 And no one can look at that and say 7 these were trivial matters. These were 8 fabricated cases. These were claims that 9 didn't have any significant value. So we 10 are focusing on Mr. Epstein's state of mind, 11 Mr. Epstein's motive, Mr. Epstein's 12 assertion to Fifth Amendment privilege from 13 which reasonable inferences against him may 14 be drawn and proving our case through all of 15 that direct and circumstantial evidence. 16 Mr. Epstein can't come in now and 17 selectively attempt to waive his Fifth 18 Amendment privilege and file an affidavit 19 that suggests, I had a good faith basis for 20 my filing these claims against Mr. Edwards 21 because there was this case filed down in 22 Broward County that never even mentions 23 Bradley Edwards' name. 24 And he can't come and stand before Your 25 Honor and say, as he just did through Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788196 86 1 Counsel, even the federal government did not 2 know who was involved in the Ponzi scheme, 3 quote, unquote, and say that provided a 4 reasonable basis for charging Bradley 5 Edwards with crimes -- with this long litany 6 of crimes. That's no reasonable basis for 7 charging Bradley Edward with anything. 8 That's reckless, that's malicious, that's 9 extortion. That's what was going on here. 10 So, we have detailed in our responses 11 the case law that relates to the concept 12 that one may not assert the Fifth Amendment 13 privilege and then at the last minute 14 attempt to withdraw it, and certainly not 15 attempt to withdraw it on the very limited 16 basis upon which it's attempted to be 17 withdrawn now. There's a long litany of 18 cases included in our memo. We have cited 19 all of the disputed issues of fact upon 20 which Your Honor relied previously in 21 finding that this was not a summary judgment 22 case in favor of the defense by any means. 23 I suggest that at the conclusion of 24 this case Your Honor is going to be able to 25 rule as a matter of law that there was no Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788197 87 1 probable cause. But you certainly can't 2 rule at the present time that there was 3 probable cause on the part of Mr. Epstein on 4 the basis of the record that exists 5 presently. 6 And I thank you very much for being as 7 patient with me in making those arguments as 8 you were, sir. 9 THE COURT: Thank you, Mr. Scarola. 10 Ms. Haddad Coleman, I will give you a 11 few moments to rebut. 12 MS. HADDAD COLEMAN: Thank you, Judge. 13 Since Mr. Scarola was kind enough to 14 quote us, I would like to -- 15 MR. SCAROLA: Excuse me. Before 16 Ms. Haddad Coleman begins, may 17 Mr. Burlington be excused if he chooses to 18 be? 19 THE COURT: Yes. Thank you, 20 Mr. Burlington. I appreciate the briefing 21 on the res judicata issue. 22 Go ahead. 23 MS. HADDAD COLEMAN: Thank you, Judge. 24 With respect to Mr. Burlington's argument, 25 we would also point out to the court that we Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788198 88 1 did file a detailed written motion in 2 opposition to his with case law spelling it 3 out. 4 THE COURT: You're talking about the Fifth Amendment issue? 6 MS. HADDAD COLEMAN: No, Judge. That, 7 I haven't been able to file yet, because we 8 just received it, but I am working on it. 9 The Court should be aware that 10 Mr. Epstein did give two depositions. In 11 response to the motion to strike and when I 12 present to this Court that Mr. Epstein did, 13 in fact, answer many questions as to what he 14 believed as to why he filed the suit, we 15 will be addressing that in our response to 16 the motion to strike the affidavit. 17 THE COURT: So what was the response 18 you are speaking of? I may have 19 misunderstood you. 20 MS. HADDAD COLEMAN COLEMAN: To the 21 document provided by Mr. Burlington's firm. 22 THE COURT: You're talking about the 23 Tipsy Coachman issue? 24 MS. HADDAD COLEMAN: Yes, we did file a 25 written response. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788199 89 1 Mr. Scarola brought up a lot of things. 2 I am going to start with the fact that he 3 did state -- and I quote, Even if 4 Mr. Epstein mistakenly believes the allegations were true. I think that's the 6 only crux of this issue. There's a lot of 7 conversation about malice. We filed a 8 summary judgment on the issue of probable 9 cause. The threshold of what Mr. Epstein 10 believed at the time he filed suit is like 11 reasonable suspicion to arrest someone: 12 there's probable and there's false arrest. 13 There's two different levels that must be 14 met at different levels of litigation. At 15 the time Mr. Epstein filed suit -- if the 16 Court will indulge me, I would like to read 17 to you a summary of the action in the 18 complaint that was filed. 19 "Attorney Scott Rothstein, aided by 20 other lawyers and employees of the firm for 21 Rothstein, Rosenfeldt & Adler, PA for 22 personal greed and enrichment in betrayal of 23 the ethical, legal and fiduciary duties to 24 their own clients, the professional 25 obligations to the administration of Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788200 90 1 justice, deliberately engaged in a pattern 2 of racketeering that involved a staggering 3 series of greatly serious obstruction of 4 justice and actionable frauds." Specifically relating to this case, it 6 states, "Marketing of non-existing Epstein 7 settlements --" and this Court may remember, 8 they settled for $3 million. That's never 9 been alleged by anybody in this case. 10 "-- in the sanctioning of a series of 11 depositions that were unrelated to any 12 principle litigation purpose for Epstein 13 cases, but instead were designed to discover 14 extraneous private information about Epstein 15 or his personal and business associates, 16 including well-known public figures, in 17 order to defraud investors and support 18 extortion and demands for payment from 19 Epstein. 20 "This misconduct featured the filing of 21 legal motions and the pursuit of a civil 22 litigation strategy. It was unrelated to 23 the merits or the value of their clients' 24 cases." 25 Nowhere has Mr. Epstein ever once Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788201 91 1 stated that they filed false cases. Instead 2 he alleged in his cases against Mr. Edwards, 3 Mr. Rothstein and LM that they were ginned 4 up, as this Court correctly points out. He specifically points to the conduct engaged 6 in the discovery, the pleadings, the other 7 things that were filed in this case. 8 And again, this is all the suspicion 9 Mr. Epstein had at the time. All of this 10 after-the-fact information, while it might 11 be well intended, that's what discovery is 12 for. That's why discovery exists after you 13 file suit. 14 At the time 15 THE COURT: I am not certain that 16 that's true. In other words, what I believe 17 one of the central holdings were of Fischer 18 was that there must be grounded allegations 19 that form the basis of a claim, and that to 20 shotgun allegations as a matter of course 21 would be ill-advised from the standpoint of 22 facing, then, the potential malicious 23 prosecution action and then longer within 24 the confines of a lawsuit, as Wolfe 25 provided, are those actions going to be Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788202 92 1 necessarily tolerated as a matter of law. 2 So, the way I look at it is this -- 3 Let me let you finish, because I think 4 I'm ready to rule whenever you are finished 5 with your argument, please. 6 MS. HADDAD COLEMAN: Judge, Mr. Epstein 7 filed an abuse of process claim against 8 Mr. Edwards. At the end of the day, both 9 sides amended complaints several times. 10 Areas of the case had changed. At the end 11 of the day, Mr. Epstein had an abuse of 12 process claim against Mr. Edwards alleging 13 specifically that he did abuse process in 14 the cases he was prosecuting when he worked 15 at RRA as a partner at RRA against 16 Mr. Epstein. 17 To allege now, all of these years later 18 that Mr. Epstein at the time had no basis in 19 fact for that, the facts are delineated in 20 nine pages of our motion. It's supported by 21 uncontroverted testimony. 22 While we're on the subject of 23 uncontroverted testimony, I would like to be 24 provided a little bit of indulgence, as the 25 Court gave Mr. Scarola, reading from Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788203 93 1 Mr. Epstein's -- one of his depositions. 2 THE COURT: Of course. Take your time. 3 MS. HADDAD COLEMAN: Mr. Edwards was 4 deposed twice. Again, this motion is now pending before the court. It's a motion to 6 compel Mr. Edwards to answer questions. 7 Now this motion was filed before 8 summary judgment was granted. The parties 9 all agreed Mr. Edwards' deposition could 10 continue. The summary judgment was granted, 11 so this is still an issue for the Court. 12 Mr. Scarola. Questions were posed to 13 Mr. Edwards -- 14 THE COURT: Can you slow down for our 15 court reporter? 16 MS. HADDAD COLEMAN: Question: "Have 17 you directed -- did you ever direct that the 18 investigators -- during the time you were at 19 RRA, did you direct them to work on Epstein 20 files?" 21 Mr. Scarola: "We're claiming the 22 privilege with respect to any action taken 23 by Mr. Edwards or at Mr. Edwards' direction 24 in connection with the investigation to 25 prosecuting claims against Mr. Epstein." Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788204 94 1 Another question is posed. 2 Mr. Scarola: "Mr. Edwards will not answer 3 any questions regarding what he did or 4 didn't do." These are all direct questions related 6 to what he did in the Epstein case, as well 7 as at RRA. 8 THE COURT: I understand. I will 9 ultimately rule on those issues once they're 10 in front of me. 11 MS. HADDAD COLEMAN: What I'm saying to 12 the Court is, if you are considering what 13 Mr. Epstein said after the fact as a basis 14 for whether or not he had probable cause at 15 the time he filed suit for these issues, and 16 Mr. Scarola is trying to make an issue of 17 the fact that -- how Edwards had this good 18 faith basis the whole time, they have 19 provided no evidence to dispute the facts we 20 present in our motion for summary judgment. 21 Not one. And if this affidavit for 22 Mr. Edwards lays out allegedly what he did 23 in this case -- this is his direct testimony 24 when he turned to the Epstein 2009 cases, 25 when he was prosecuting them at RRA. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788205 95 1 "Mr. Edwards, were you involved in a 2 discussions regarding the deposing of any of 3 the people -- the individuals -- Mr. Trump 4 or any -- with any of the lawyers in your firm, including Scott Rothstein?" 6 "Objection." 7 "Did you ever discuss with 8 Mr. Rothstein or anyone on his behalf the 9 value of taking the depositions of Donald 10 Trump, Alan Dershowitz, former President 11 Clinton, David Copperfield, Leslie Wexner, 12 as an inducement to get Mr. Epstein to 13 settle his lawsuits?" 14 Mr. Scarola again -- none of these 15 questions are answered. So at the risk of 16 pointing this out to the Court -- because 17 it's not in our motion for summary judgment 18 and I believe it's related to the issue of 19 what Mr. Epstein had in his mind at the 20 time, there's no evidence in this case to 21 controvert what Mr. Epstein had available to 22 him at the time he filed suit upon which he 23 relied, and the good faith basis he had to 24 file a lawsuit that was filed by a 25 respectable law firm in this town. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788206 96 1 All of the case law upon which we 2 relied to discuss the low threshold of 3 probable cause and what -- how it relates to 4 the evidence to this court is in our motion. And for the reasons we write therein, Judge, 6 we request that this court grants the motion 7 for summary judgment. 8 THE COURT: All right. Thank you to 9 each of the attorneys who provided not only 10 excellent oral argument, but also I 11 appreciate the written presentations as 12 well. 13 Let me start by saying that the motion 14 is denied for two principle reasons. One, I 15 do find that, based upon the Fourth District 16 Court of Appeal's opinion -- and for the 17 record, that opinion is that 178 So.3rd 942 18 in Edwards versus Epstein -- the second 19 paragraph -- which again, I will not belabor 20 since we have already read that into the 21 record on two occasions -- does in this 22 Court's respectful view constitute law of 23 the case. And hence, it does procedurally 24 foreclose Mr. Epstein's motion. 25 And again, respectfully it was the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788207 97 1 insistence of Mr. Epstein through counsel 2 based upon the uncontroverted procedural 3 history provided by Mr. Burlington in front 4 of the Fourth District Court of Appeal that the Fourth decided, through Judge Warner's 6 opinion, to address the Tipsy Coachman 7 issue, address it they did, and they did not 8 disturb the trial court's findings. 9 Although, as I did indicate earlier, 10 the focus was certainly on Wolfe and the 11 facts and circumstances in Wolfe were 12 inexplicably tied, in my respectful view, to 13 facts of this case. 14 Irrespective of that, and in 15 recognition that the court did not have the 16 Fischer case at its disposal when this court 17 made its ruling, and then ultimately the 18 Florida Supreme Court decided that Fischer 19 would be the applicable law on the subject, 20 we are now back again here today. 21 The second reason -- again, just in 22 case there's some discrepancy or suggestion 23 that that language may have constituted 24 dicta -- which I don't believe it did -- I 25 believe it was a pronouncement and a finding Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788208 98 1 by the court specifically in upholding that 2 aspect of this court's decision. 3 My denial is also based upon what I 4 perceive to be abundant factual issues pertaining to the probable cause issue. 6 As I indicated earlier, the facts are 7 by no means clearcut here, as they are in 8 most false arrest cases. Mindset of both 9 Mr. Epstein and Mr. Edwards are going to be 10 critical in a fact finder's analysis as it 11 relates to probable cause. 12 The reason and rationale behind 13 Mr. Epstein's decision to go forward in the 14 first place, the reasons behind Mr. Edwards 15 filing of the federal court case, 16 Mr. Epstein's conclusions, right or wrong, 17 at the time he made the decision to go 18 forward in the prosecution of the claim, 19 inclusive of whether or not he himself 20 suffered any damages as a result of what I 21 will term Rothstein or the Rothstein 22 entity's or entities' actions are all 23 subject to resolution by the finder of fact. 24 So again, with my thanks I will go 25 ahead and denied that motion for the reasons Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788209 99 1 stated on the record, and we will proceed 2 on, once we get back from the lunch break, 3 with the next motion. 4 What motion would you like to hear next? Let me hear from Mr. Epstein's 6 counsel, and then I will hear from 7 Mr. Edwards' counsel. 8 MS. HADDAD COLEMAN: Judge, I would 9 like to address all of my motions to compel 10 discovery responses for Mr. Edwards since we 11 kind of left off with that with our last 12 argument for summary judgment. 13 THE COURT: Okay. Mr. Scarola, the 14 principle motions this afternoon are from 15 your standpoint are what? 16 MR. SCAROLA: Your Honor, I would 17 assume that the Court has not yet reached 18 the argument with regard to the implications 19 of Mr. Epstein's assertion of Fifth 20 Amendment privilege. 21 THE COURT: Correct. Let me just 22 add -- there was one thing I wanted to add. 23 Forgive me for interrupting. 24 But I am going to find that Edwards' 25 motion in limine to strike the June 30th Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788210 100 1 affidavit of Epstein is moot based upon the 2 Court's initial finding as the law of the 3 case and otherwise moot based upon the 4 Court's denial of the motion for the reasons that I have stated on the record, thus not 6 necessitating my ruling on the issue at this 7 time, that being the motion for the 8 affidavit. 9 MR. SCAROLA: Thank you, Your Honor. 10 That's the clarification that I was 11 requesting. 12 In light of that, I don't know whether 13 Your Honor chooses to reach the defense's 14 omnibus motion in limine which includes a 15 lot of arguments that are based upon the 16 Fifth Amendment privilege. 17 THE COURT: The only reason I'm 18 concerned -- again, I made myself clear to 19 counsel for Mr. Epstein that I will not 20 accept, respectfully, the excuse that there 21 is insufficient representation or that 22 there's not enough time. 23 Having been an attorney or litigator 24 for the better part of 17 years prior to 25 being on the bench and now as a judge for Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788211 101 1 the better part of 18 years, I think I have 2 a pretty good handle, based upon that 3 combined 35 years of experience on what is 4 necessary to properly defend and prosecute 5 civil cases. 6 And this is a major undertaking from 7 both sides, and also a major undertaking 8 from the Court. I harken back to a case 9 yesterday on a very complex business matter 10 where one of the attorneys was a clerk for 11 Judge Middlebrooks, federal court. And he 12 gave somewhat of a wry smile when he stated 13 that our trial courts here in the state of 14 Florida are not afforded with the same 15 support as our federal judges and our 16 appellate court judges. 17 And while I am not complaining, it's a 18 reality. But I spend as much time as I can 19 to prepare myself and to read the materials. 20 And if help is an absolute requirement, we 21 seek it out through our trial clerks, who, 22 while they do an exceptional job, are 23 themselves busy, because I think there's 24 about nine of them assigned to somewhere 25 around 50 judges in the main courthouse, one Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788212 102 1 up in South County -- one down in South 2 County, one up in North County. So they're 3 stretched, so we don't have that same 4 luxury. The litigants do. And I want to make clear that if help 6 is needed, make sure you get it, because, 7 again, this is complex. These are multitude 8 issues, they're involved, and I want to give 9 fair warning that the lack of time for solo 10 practitioners -- while, again I'm empathetic 11 to it, while I understand, it's not going to 12 suffice here. 13 So whatever the proper support -- help 14 may be required -- I am giving you fair 15 warning now, a couple months before trial, 16 that it be secured. 17 All right, so again, I don't want to 18 overstate the situation, or -- it is not 19 being critical of anyone. It's just that 20 based upon the time and experience that I 21 have had in dealing with cases of this 22 type -- not so much these issues, but 23 certainly of the magnitude that you are 24 dealing with. I recognize that there will 25 be support -- help required. And perhaps Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788213 103 1 that has to be emphasized today so that we 2 are not going to be running into this issue 3 in the future. 4 And again, that has nothing to do with 5 the holidays. I don't want it to be 6 misconstrued. It has nothing to do with 7 anything that may have transpired as a 8 result of the recent hurricane. It's only 9 as a matter of observation, and, again, 10 replying on what was brought up by 11 Ms. Haddad Coleman at the inception of the 12 hearing today, as far as time constraints. 13 So what I am saying is, for today -- 14 because of the magnitude of the issue and 15 based upon the fact that perhaps the 16 deadlines were not accommodated to a certain 17 degree -- I will hold off on ruling on this 18 Fifth Amendment privilege, because I think 19 it really does require exhaustive briefing 20 and discussion. 21 Since, I believe, Ms. Haddad Coleman, 22 you indicated to me that you have not yet 23 finished that aspect of your briefing, 24 correct? 25 MS. HADDAD COLEMAN: No, Judge, I have Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788214 104 1 not, because I received it on the 25th and 2 you had us turn it in on the 28th. 3 THE COURT: And that's understandable. 4 Again, no matter what level of support you 5 may have had -- and I can still remember as 6 a young associate staying until midnight 7 trying to finish stuff at the last minute 8 because of potentially unreasonable 9 deadlines. 10 MR. GOLDBERGER: That's because of who 11 your boss was, Judge. 12 THE COURT: May be some truth to that. 13 What I'm getting to is, because of the 14 significance of the issue, I don't want to 15 preclude anyone from having sufficient time 16 to finish the brief. So I think that's not 17 unreasonable at all under these 18 circumstances. 19 Is there anything else we can get to 20 besides the motions in limine, other than 21 the motions to compel? 22 MR. SCAROLA: Your Honor, the motion in 23 limine includes many issues that are not 24 tied to the Fifth Amendment privilege. And 25 dealing with the motion in limine I suggest Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788215 105 1 will help to define the issues and provide 2 guidance to both sides with regard to our 3 motions to compel discovery. 4 With regard to the motions to compel discovery, there are motions to compel 6 discovery on both sides. I would simply ask 7 that we alternate. The defense can pick 8 one, we will deal with that. They can go 9 first, we will go next, and we will 10 alternate dealing with discovery motions to 11 the extent that Your Honor has time to 12 accommodate us on those. 13 MR. BREWER: Your Honor, it really is a 14 disadvantage to chop up that motion limine 15 THE COURT: I agree. I think that my 16 better judgment would be to defer on the 17 motion in limine until such time as 18 Ms.Haddad and her cohorts or her co-counsel 19 have had the opportunity to brief the issue 20 conclusively and exhaustively. 21 In this particular instance, 22 Mr. Scarola, I will also allow a reply 23 brief, once she has had an the opportunity, 24 because of the significance of the issue and 25 the fact that much of what is going to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788216 106 1 transpire at the presumptive trial will be 2 matters that are going to be addressed at 3 the motion in limine. And these are 4 critical issues that are going to impact the way the trial is going to go forward. 6 MR. SCAROLA: Your Honor, with respect 7 to the motion in limine, that was an Epstein 8 motion to which Edwards has replied, so 9 that's been fully briefed in accordance with 10 the earlier order. 11 The motion that I think Your Honor is 12 referring to is our motion to strike the 13 affidavit of Mr. Epstein, which goes beyond 14 simply striking his affidavit and asks to 15 preclude any evidence as to which he has 16 previously denied discovery through 17 assertion of the Fifth Amendment privilege. 18 So with regard to that motion, we have 19 filed our motion. They have not yet filed a 20 response. I understand Your Honor is 21 permitting them to do that, and we 22 appreciate the opportunity to be able to 23 reply after they do. 24 I would request that specific time 25 limitations be set so that, again, this does Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788217 107 1 not drag on to a point where there's any 2 possibility of it interfering with our 3 scheduled trial. 4 THE COURT: All right. Let's go 5 ahead -- what we are going to have to do is 6 confer on those time issues while we are 7 away so that I can get a better feel for 8 where you are if I have to make a decision 9 if you can't otherwise agree. Hopefully you 10 will. 11 MR. SCAROLA: May I submit an order to 12 the Court on the summary judgment motion 13 which simply says said motion is denied for 14 the reasons expressed on the record? 15 THE COURT: That's fine. Thank you. 16 I am going to return the summary 17 judgment material to you through our deputy. 18 Thank you, sir. 19 And again, thank you all for your 20 excellent presentations. Thank you to our 21 court reporter as well. 22 What time will we reconvene? We will 23 reconvene assembled at 1:25. Thank you very 24 much. See you guys at that time. 25 (A recess was had 12:10 p.m. - 1:32 p.m.) Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788218