EFTA00792811

1 2 UNCERTIFIED TRANSCRIPT DISCLAIMER IN THE MATTER OF 3 EPSTEIN 4 v. 5 EDWARDS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DRAFT ONLY !!!! NOT PROOFREAD EFTA00792811 1 The following transcript(s) of proceedings, or any portion 2 thereof, in the above-entitled matter, taken on November 3 29th, 2017, is being delivered UNEDITED and UNCERTIFIED by 4 the official court reporter at the request of Kara 5 Rockenbach, Esquire. 6 The purchaser agrees not to disclose this uncertified and 7 unedited transcript in any form (written or electronic) 8 To anyone who has no connection to this case. 9 This is an unofficial transcript, which should NOT be 10 relied upon for purposes of verbatim citation of 11 testimony. 12 This transcript has not been checked, proofread 13 or corrected. It is a draft transcript, NOT a certified 14 transcript. As such, it may contain computer-generated 15 mistranslations of stenotype code or electronic 16 transmission errors, resulting in inaccurate or 17 nonsensical word combinations, or untranslated stenotype 18 symbols which cannot be deciphered by non-stenotypists. 19 Corrections will be made in the preparation of the 20 certified transcript, resulting in differences in content, 21 page and line numbers, punctuation and formatting. 22 This realtime uncertified and unedited transcript contains 23 no appearance page, certificate page, index or 24 certification. 25 DRAFT ONLY !!!! NOT PROOFREAD EFTA00792812 1 THE COURT: We are here on Epstein 2 versus Rothstein and Edwards. The two 3 applicable parties being dealt with -- have 4 a seat, please. Thank you. 5 -- being Mr. Epstein and Mr. Edwards, 6 and the counterclaim brought by Mr. Edwards 7 against Epstein relative to a malicious 8 prosecution claim that has been brought. We 9 will confine our arguments to that 10 particular matter. And we will keep in mind 11 the following: Direct all of your arguments 12 to the bench. Please do not speak to each 13 other. Please stay away from any 14 pejorative, unnecessary comments as it 15 relates, in particular, to the 16 counter-defendant. 17 I will remind you that the Court order 18 that I executed relative to the continuous 19 of the trial on 14 November this year, 20 ordered that no replies be provided to the 21 Court absent court order. You have violated 22 my order. The replies are being ignored. I 23 do not expect that to be repeated, absent 24 sanctions. Is that understood? Both sides? 25 Ms. Rockenbach? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792813 1 MS. ROCKENBACH: Yes, Your Honor. 2 THE COURT: Mr. Scarola? 3 MR. SCAROLA: Yes, Your Honor. 4 THE COURT: If I need them, I will ask 5 for them. I have several bankers boxes' 6 worth of materials here. I don't need 7 anything further unless I request it. 8 I am well-advised in the case, as you 9 may or may not know. I think I announced 10 this earlier, for whatever it's worth, I 11 handled the underlying cases in division AB. 12 So I have had a long history in dealing with 13 the matters that surround the instant 14 action. Let's start with the 15 counter-defendant's revised omnibus motion 16 in limine. 17 MR. LINK: May it please the Court. 18 THE COURT: Yes, sir. Thank you. 19 MR. LINK: Thank you, Your Honor. We 20 know that we have provided you with a 21 forest, maybe two forests, and we really 22 appreciate your spending the time to go 23 through it. 24 If you think back to the motion that we 25 filed to continue -- and we appreciate Your DRAFT ONLY !!!! NOT PROOFREAD EFTA00792814 1 Honor giving us time to understand what this 2 case is about. The reason we need this time 3 and we need your time today is because we 4 are not sure what case we're trying. And we 5 have to understand what case we're trying, 6 Judge, in order to determine what evidence 7 should come in. 8 So with Your Honor's permission, I 9 would like to just show you what I've put up 10 here, so -- 11 THE COURT: Do you have a hard copy of 12 your PowerPoint? 13 MR. LINK: Yes, sir. 14 THE COURT: If I may have it. 15 MS. ROCKENBACH: May I approach, Your 16 Honor? I shared this with Mr. Scarola last 17 evening. 18 THE COURT: Thanks. 19 MR. LINK: Your Honor, before we get 20 to the blowup and the screen, I would like 21 to just take a minute and talk to you about 22 what we think the evidentiary issues we have 23 raised in our motion that have to be 24 resolved. 25 The first is -- and I know Your Honor DRAFT ONLY !!!! NOT PROOFREAD EFTA00792815 1 know -- you have told us this over and 2 over -- you know the elements of malicious 3 prosecution, and that you know them well, 4 and they're well-settled. 5 But when you read the papers you will 6 see there is a disagreement about what those 7 elements are. And so I just want to take a 8 moment to go through them and find out -- 9 what we really need to understand before we 10 can try this case to a jury is this: what 11 facts are in dispute that a jury has to 12 decide. That's our struggle. 13 So, Your Honor, the malicious 14 prosecution, element one, the commencement 15 of a proceeding, that is not an issue in 16 this case. 17 Element two. Was it filed by the 18 present defendant -- the counter-defendant. 19 Not an issue in this case. 20 Item three. The bona fide termination 21 in favor of the plaintiff. That is an issue 22 in this case. 23 That takes me to item two for one 24 moment on my board, Your Honor, which is 25 burden of proof. The counter-plaintiffs DRAFT ONLY !!!! NOT PROOFREAD EFTA00792816 1 suggest in their papers that once they prove 2 the underlying claims by Mr. Edwards' three 3 plaintiffs that were settled in 2010, that 4 they have met enough to go forward and skip 5 by the bona fide termination. 6 The reason the bona fide termination is 7 important is that that is the one area in 8 the burden of proof -- the one area that 9 shifts to us as -- 10 THE COURT: If I'm not mistaken, are we 11 talking about bona fide termination of the 12 Epstein action brought by Epstein versus 13 Rothstein and Edwards? 14 MR. LINK: Yes. 15 THE COURT: So why are we dealing with 16 the underlying claims of the bona fide 17 termination issue? 18 MR. LINK: I don't know why we are, 19 except that is part of the papers that we 20 are dealing with. 21 THE COURT: They are part of the 22 papers, as I understand it, so as to 23 establish a nexus between the reason why 24 Mr. Epstein brought this claim in the first 25 place against Rothstein and Edwards, and to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792817 1 try to determine the rationale that 2 Mr. Epstein had to bring this case in the 3 first place, which is a question that the 4 jury is going to have, which is a question 5 that the Court has, and what was the reason 6 behind bringing this case. 7 Was it one of vengeance? Was it one of 8 hatred? Was it one of -- 9 MR. LINK: Malicious. 10 THE COURT: Malicious. Let me get to 11 the point. Was it one of feeling that he 12 was taking -- that the part of those whose 13 investments were had by Rothstein as a 14 result of that massive Ponzi scheme -- as he 15 indicates in his deposition -- he felt that 16 these people were taken advantage of as a 17 result of Rothstein's misdeeds? I don't 18 know what the reason was, and I'm sure the 19 jury is going to ask what the reasons were. 20 But there is going to be some introduction, 21 albeit it tempered -- clearly tempered -- 22 MR. LINK: Yes, sir. 23 THE COURT: And Ms. Rockenbach I 24 believe she was the signatory to the 25 motion -- acknowledges that some of that DRAFT ONLY !!!! NOT PROOFREAD EFTA00792818 1 information is going to be in. There is no 2 way we're going to be able to sanitize the 3 case to that extent. 4 MR. LINK: We wouldn't ask the Court to 5 do that. 6 THE COURT: So that's what I'm trying 7 to understand. Why are we going there when 8 it comes to bona fide termination? 9 MR. LINK: The reason is that I want to 10 make sure that we are all on the same page 11 about whose burden of proof in the case, 12 because that will make a difference about 13 the evidence that needs to come in. 14 THE COURT: I don't think there is any 15 issue -- I don't believe Mr. Scarola is 16 taking issue that initially the burden of 17 proof is with the counter-plaintiff Edwards 18 as to the determination or the showing that 19 there was a bona fide termination of the 20 case in his client's favor -- this case, 21 meaning Epstein versus Rothstein and 22 Edwards, and specifically Rothstein versus 23 Edwards. Is that fair, Mr. Scarola? 24 MR. SCAROLA: It's fair, Your Honor, 25 that we acknowledge that we have the burden DRAFT ONLY !!!! NOT PROOFREAD EFTA00792819 10 1 of proof with regard to every element. 2 It is also our position that the issue 3 as to whether the underlying claim was bona 4 fiably terminated in favor of Bradley 5 Edwards is an issue of law for the Court. 6 There are no disputed -- Mr. Edwards is 7 present, yes. 8 There are no disputed issues of fact 9 with regard to what happened, and therefore, 10 the Court will need to make the legal 11 determination as to whether that constitutes 12 a bona fide termination. And we believe 13 that that is an issue that has been resolved 14 through the appellate process as well. 15 THE COURT: Up to the point where 16 there's a belief that the issue has been 17 resolved through the appellate process as 18 well, I agree with Mr. Scarola's position. 19 At this point, in my view, ultimately 20 it becomes potentially a legal issue. If 21 the facts are clear and there's no factual 22 dispute, then it becomes purely a legal 23 decision as to whether or not there's been 24 bona fide termination. 25 MR. LINK: We agree 100 percent, Judge. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792820 11 1 100 percent. 2 THE COURT: I don't want to deviate -- 3 MR. LINK: I know. So I'm going to go 4 to the next piece, which is the key, which 5 is the absence of probable cause. And the 6 absence of probable cause focuses here -- 7 the absence of probable cause -- and this is 8 what Your Honor was just talking about -- 9 focuses here. December 7th, 2009. That's 10 when Mr. Epstein brought his claim against 11 Rothstein, Mr. Rothstein's firm and 12 Mr. Edwards. 13 THE COURT: Did he bring it against 14 Rothstein's firm? I only have Rothstein 15 individually -- 16 MR. SCAROLA: Rothstein, individually 17 and Bradley Edwards, individually. 18 MR. LINK: My apologies. 19 THE COURT: That statement is 20 retracked. It's Rothstein individually and 21 Edwards, individually. Mr. Scarola 22 concurred and Mr. Link has now concurred. 23 MR. SCAROLA: And L.M., which I think 24 is of some significance also. 25 THE COURT: Was she brought in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792821 12 1 originally? 2 MR. SCAROLA: Yes. 3 MR. LINK: She was, Judge. 4 Here is our view of what we have to do 5 when we look at the evidence we are going to 6 show you -- the exhibit list, the testimony 7 to come in -- is to focus on what the jury 8 is going to have to decide. 9 Again, I'm not sure what the facts are 10 in dispute, but it's here. The only 11 information that makes a difference is what 12 Epstein -- what Epstein looked at; what he 13 considered; the inferences he drew from that 14 information; and whether when you take the 15 totality of that information, Your Honor, he 16 had a reasonable basis to bring a civil 17 proceeding against Mr. Edwards. 18 I don't think there is any dispute. I 19 have read the Court's transcript where the 20 Court has said -- the case against 21 Mr. Rothstein, I understand that. I don't 22 think anybody is disputing that. The 23 question is was there sufficient -- 24 THE COURT: Hold on. Hold on a minute. 25 Let's not take my comments out of context. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792822 13 1 Whether or not there was ever any issues 2 that Mr. Epstein had viably against either 3 Rothstein, Edwards or L.M. are still, as far 4 as the Court is concerned, unanswered. 5 MR. LINK: Remember we have a default 6 against Mr. Rothstein. 7 THE COURT: That's a different issue. 8 MR. LINK: I understand your point, 9 Judge. 10 THE COURT: I don't want my comments to 11 be taken out of context. 12 MR. LINK: Fair enough. 13 THE COURT: A default is different than 14 a court indicating some type of 15 understanding as to Mr. Epstein's cause of 16 action against Rothstein in this particular 17 case. Because, as I said, the jury will 18 question and the Court continues to question 19 why Mr. Epstein brought this case in the 20 first place. 21 MR. LINK: Fair enough. Thank you for 22 the clarification. 23 THE COURT: And the reason why that's 24 important is because the counter-plaintiff 25 has argued that circumstantially -- and DRAFT ONLY !!!! NOT PROOFREAD EFTA00792823 14 1 based upon, in large part, invocation of the 2 Fifth Amendment by Mr. Epstein, they are 3 going to need to prove that or disprove that 4 potentially through the Fifth Amendment 5 issues that we are going to be discussing. 6 Because while Mr. Epstein may have his 7 own motivation, circumstantially it is going 8 to be up to the plaintiff to prove that 9 motivation was not, in fact, in good faith. 10 And I'm using good faith not as a term -- 11 not as a legal term, but more of a term of 12 art. 13 MR. LINK: I understand that. 14 THE COURT: So, it brings us to the 15 point that we need to get to. So I am with 16 you so far in terms of where you're going. 17 And you're leading me through this. I 18 appreciate it very much. 19 But it does get us now to this really 20 critical issue of, well, again, there's this 21 huge question that's being asked by -- going 22 to be asked by the finder of fact and the 23 trier of the law, and that is, how does the 24 counter-plaintiff prove its case when 25 Mr. Epstein has answered selected questions? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792824 15 1 I was -- I am now paraphrasing 2 Mr. Epstein's answers in large part. I 3 found out that Rothstein was factoring these 4 cases. I found out that these investors 5 were being taken advantage of. Taken 6 advantage of through the forging of an 7 order -- forging of an order that purported 8 to have the signature of Judge Marra -- a 9 tremendously well-respected jurist in this 10 community, now taken senior status. 11 I, meaning Mr. Epstein, was not only 12 concerned about Rothstein doing what he did, 13 but also I had suspicions that Mr. Edwards 14 was involved in this process, because there 15 were some articles that discussed the query 16 could Rothstein have done this alone, and 17 implicated at least the cases -- not to my 18 knowledge Mr. Edwards -- but the cases that 19 Mr. Edwards was serving as lead counsel. 20 Some before this particular court in 21 division AB back in 2009 and that period of 22 time -- perhaps just around that period of 23 time. 24 So there's going to be a large question 25 in the trier-of-facts' mind and remains in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792825 16 1 the Court's mind. How was Mr. Epstein 2 damaged by what transpired from the 3 standpoint of Rothstein, or what may have 4 transpired from his own mind as it relates 5 to Mr. Edwards? 6 That's going to be a huge question, and 7 remains a huge question. What was Epstein 8 doing at that time, meaning, why did he file 9 this lawsuit? What was his damages? Why 10 was he even doing this in the first place? 11 That's going to create an issue. 12 And the reason I bring it up is solely 13 to get into the argument that's going to be 14 raised by the counter-plaintiff Edwards. 15 And that is how do we prove this where 16 Epstein chooses to answer only certain 17 questions regarding his motivation, i.e., 18 malice, and probable cause? 19 But it doesn't answer questions germane 20 to his mindset that, okay, there were these 21 factored cases by Rothstein. He's paying a 22 severe price for what he did. 23 The millionaire investors who got 24 involved in this Ponzi scheme have clearly 25 been damaged and restitution has been paid, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792826 17 1 to my understanding, to the extent that 2 those assets of Rothstein's and those who 3 were otherwise implicated paid what they 4 paid. 5 But how is Mr. Epstein damaged, and 6 what was his motivation -- other than 7 altruism, other than the questions that were 8 asked by Mr. Scarola, which he didn't 9 answer -- that could have been referencing a 10 myriad of things: vengeance, anger, 11 hostility. But they have that ability -- in 12 my respectful view, in reading these 13 materials -- to be able to raise those 14 issues and perhaps through the Fifth 15 Amendment Avenue. 16 MR. LINK: Maybe, Your Honor. 17 THE COURT: We need to concentrate on 18 that. And we need to not only look at -- 19 what I'm trying to say is, through 20 Ms. Rockenbach's excellent written 21 presentation -- 22 MR. LINK: I helped a little bit, 23 Judge. 24 THE COURT: Actually, Mr. Link signed 25 it. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792827 18 1 MR. LINK: There you. I took credit 2 for it all, Your Honor. 3 THE COURT: My apologies. 4 MR. LINK: It was a little bit of me. 5 THE COURT: We get in trouble when we 6 assume. Irrespective of that, Mr. Link 7 signed it. So you can tell I'm more 8 concentrated on the body of work than who 9 necessarily executed it. 10 But what I am trying to say is, what I 11 believe respectfully is being done here is 12 it's a one-sided argument. 13 Now, I agree that you have to zealously 14 represent your client and take his side, and 15 I have no problem with that. But what I'm 16 also suggesting is, at the same time, there 17 has to be some consideration and some 18 concession that they have a viable -- I 19 won't say viable claim -- but they have 20 viable arguments to support what they are 21 trying to accomplish. And the means to do 22 that is largely hamstrung by Mr. Epstein's 23 refusal to answer questions. 24 Go ahead. 25 MR. LINK: Thank you, sir. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792828 19 1 Those are exactly the issues we have. 2 And there's one thing, Your Honor, I think 3 that I would ask you to consider. This is 4 very important. And I will tell you that if 5 you walk through these elements, this 6 element right here -- this is the key -- the 7 absence of probable cause does not take into 8 consideration anybody's motive, their anger, 9 their malice, their state of mind or 10 anything else other than -- other than -- 11 and we will get to malicious -- you are 12 dead-on -- but probable cause is an 13 objective standard. If the facts are not in 14 dispute, it's an objective standard to be 15 determined by this Court. That's what the 16 Florida Supreme Court has told us. 17 So, what's important -- what's 18 important is the counter-plaintiff doesn't 19 challenge that this information was 20 available. They don't challenge that the 21 information, when read, it says Rothstein 22 was involved in a Ponzi scheme. It says 23 Mr. Epstein's three cases were being used to 24 lure investors and information about them 25 was fabricated. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792829 20 1 So there's not a dispute about that. 2 The question is this. The question is, did 3 Mr. Epstein have some reason to doubt or not 4 believe the information he was reading. 5 Because even though probable cause, Your 6 Honor, is an objective standard, if I know 7 what I'm reading is false, then I haven't 8 really in good faith relied on it. 9 But it doesn't matter. The case law 10 says you cannot establish probable cause or 11 the lack of it by the most actual malice 12 known to man. 13 I can hate this gentleman. I can want 14 to bury this gentleman. I can want to run 15 him out of business. But if I have 16 objective probable cause -- 17 THE COURT: And you are saying, as a 18 matter of law, you are suggesting to me that 19 newspaper articles -- which are the bulk of 20 the reliance that Mr. Epstein is 21 suggesting -- is sufficient to establish 22 probable cause? 23 MR. LINK: Yes, sir, I am. 24 THE COURT: We are really not there yet 25 because -- DRAFT ONLY !!!! NOT PROOFREAD EFTA00792830 21 1 MR. LINK: I know we're not. 2 THE COURT: -- this isn't a motion for 3 summary judgment. 4 MR. LINK: It's not. But I wanted to 5 answer the Court's question. 6 I think it's really important, Judge, 7 as we go forward, that we differentiate the 8 element of probable cause and the element of 9 malice. Because you are exactly right. 10 When you get to item five, malice, what's 11 his intent to hurt Mr. Edwards. That is 12 absolutely relevant for the jury's 13 determination. No question. Okay. It is. 14 But it is not relevant to whether there was 15 a lack of probable cause. And that's a 16 balance that we have here because -- 17 THE COURT: What's not relevant in the 18 absence of probable cause? Are you talking 19 about malice? 20 MR. LINK: Malice. Intent. We will 21 show you cases, Your Honor, where it says if 22 you have probable cause and you have malice, 23 there's no claim for malicious prosecution. 24 You only look at malice once you've 25 established probable cause. You can't use DRAFT ONLY !!!! NOT PROOFREAD EFTA00792831 22 1 malice to establish probable cause. You 2 can, on the other hand, use probable cause 3 to establish malice. 4 THE COURT: I understand. 5 MR. LINK: That makes sense? 6 THE COURT: I understand you 7 completely. 8 MR. LINK: The reason that's important 9 is because if you combine -- if you say, 10 What's in his mind? How is he trying to 11 hurt this guy? When he's reviewing the 12 Razorback complaint, the U.S. Attorney's 13 statement, and the newspapers articles that 14 are out there, then you are combining malice 15 and probable cause. 16 So, that's what we have to avoid. It's 17 really critical, and here is why. 18 By the way, I want for the Court to 19 know I really appreciate the hard work that 20 Mr. Edwards' team has put in. They did a 21 lot of writing. We did a lot of writing. 22 We have crystalized the issues for this 23 Court's determination. 24 So one of the things that Mr. Edwards 25 tells us in his response to our motion in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792832 23 1 limine, he wants to tell us how he's going 2 to try this case. And here is what he says. 3 "Edwards starts by proving the truth of the 4 claims he brought on behalf of his three 5 clients." 6 That evidence, Your Honor, if this case 7 hadn't settled, would absolutely have been 8 relevant to that trial, without a question. 9 Every -- I shouldn't say every -- many 10 of the questions that were asked of 11 Mr. Epstein that he took the Fifth to very 12 well could have been relevant to this 13 lawsuit, okay? But the truth of the 14 allegations that they were making has 15 nothing to do with what Mr. Epstein reviewed 16 in 2009 before he brought the suit. 17 There's nothing that's in their mind or 18 that happened to them that can have 19 influenced Mr. Epstein when he was reading 20 the material. 21 THE COURT: So what you're suggesting, 22 though, Mr. Link, is that there could never 23 be a successful plaintiff in a malicious 24 prosecution case. 25 MR. LINK: No, sir. I'm not suggesting DRAFT ONLY !!!! NOT PROOFREAD EFTA00792833 24 1 that at all. I will give you an example. 2 What if this lawsuit was filed and there 3 were two articles that existed that said 4 that Mr. Edwards had nothing to do with the 5 Ponzi scheme. And Mr. Epstein, in looking 6 at the information that was available, took 7 that information -- or he knew Mr. Edwards 8 wasn't involved at all in any way -- and I'm 9 not telling you that Mr. Edwards was. I am 10 saying based on the information at that 11 time -- 12 THE COURT: Where was that information, 13 by the way, that suggests Mr. Edwards had 14 involvement? 15 MR. LINK: The information that 16 suggests that he had involvement is this. 17 MS. ROCKENBACH: Your Honor, may I 18 approach? I have a copy that might be 19 better for the Court. I shared this with 20 Mr. Scarola yesterday. 21 MR. LINK: Your Honor asked a great 22 question. It is without a doubt nothing in 23 the press or the U.S. Attorney's office or 24 anywhere else that comes out before 25 Mr. Rothstein goes down that connects DRAFT ONLY !!!! NOT PROOFREAD EFTA00792834 25 1 directly Mr. Edwards to the Ponzi scheme. 2 It does not. 3 So what we have to then look at is this 4 information. So you have as your 5 backdrop -- put yourself in Mr. Epstein's 6 shoes for a minute. You have as a backdrop 7 your reading that the three cases that you 8 have are being used to solicit investors, 9 and you're being told that you have already 10 offered a $30 million settlement, which was 11 untrue. That you've already agreed to pay 12 $200 million, which was untrue. That there 13 were 50 other claimants out there at the 14 Rothstein firm, which were untrue. And you 15 read all of that, and then you start 16 thinking about what's happened in the 17 litigation against you. 18 In the litigation against you, you 19 start to see things that are different from 20 when Mr. Edwards was a sole practitioner. 21 THE COURT: Freeze that phrase for a 22 moment. 23 MR. LINK: Yes, sir. 24 THE COURT: When you think about the 25 litigation that was brought against you -- DRAFT ONLY !!!! NOT PROOFREAD EFTA00792835 26 1 when you are saying what Mr. Edwards brought 2 against Mr. Epstein, correct? 3 MR. LINK: Yes, sir. 4 THE COURT: Very well. 5 MR. LINK: Yes, sir. That's what I'm 6 talking about. 7 THE COURT: I want to make sure that 8 that is what you're saying. 9 MR. LINK: We're on the same page. 10 Edwards' clients versus Mr. Epstein. 11 And you look at the time period that 12 Mr. Edwards is at Rothstein's -- this is 13 really the question. I think it's a legal 14 question. The question is, was there 15 sufficient smoke for you to think there 16 could be fire? Was there sufficient 17 information that you could draw a reasonable 18 inference from that would allow you to bring 19 a civil claim? And here is what we see. We 20 see many different things that happened. 21 So, for example, all of a sudden you 22 have Mr. Edwards and his team saying they 23 want to depose Donald Trump, Bill Clinton. 24 And there wasn't any testimony from the 25 three folks that Mr. Edwards represented DRAFT ONLY !!!! NOT PROOFREAD EFTA00792836 27 1 that they had any contact with Mr. Clinton 2 or Mr. Trump, or any of the other folks that 3 they said they wanted to depose. 4 The three folks that Mr. Edwards 5 represented never said they were on one of 6 Mr. Epstein's planes, yet they spent 12 7 hours deposing Mr. Epstein's pilot and 8 didn't ask a single question about 9 Mr. Edwards' clients. 10 He had a state court case filed on 11 behalf of L.M. He then files a 234-page 12 federal court complaint with 100-and-some 13 counts that he never serves. 14 He then files a motion for fraudulent 15 transfer in the federal case saying 16 Mr. Epstein is fraudulently transferring 17 assets, and lists in there all these assets 18 he has. And Judge Marra denies it and says 19 this was brought without any evidence 20 whatsoever. 21 So if you look at these things that 22 happened, and you now have them in the 23 context of, wait a minute, I just read that 24 Rothstein was telling folks that these cases 25 were worth $500 million, and Mr. Epstein has DRAFT ONLY !!!! NOT PROOFREAD EFTA00792837 28 1 already offered $200 million. And that's 2 not enough. We are going to get more. 3 If you are Mr. Epstein, you start 4 thinking, Well, was all of this stuff being 5 done to generate information to show the 6 investors in the Ponzi scheme? Then we know 7 that the flight logs that came from the 8 pilots, that had nothing to do with the 9 three plaintiffs that Mr. Edwards used were 10 used by Rothstein to show investors. 11 THE COURT: But couldn't that same 12 information, Mr. Link, serve the 13 counter-plaintiff as well as it might serve 14 Mr. Epstein, which creates a potentially 15 classic jury question? And that is, that 16 all of these things that were done -- the 17 inconveniencing of his pilots, the 18 inconveniencing of his high-level friends, 19 the implications of these high-level 20 friends -- all of these things that were 21 done to anger Mr. Epstein at or around the 22 time, if my memory serves, when these cases 23 were being settled -- doesn't that serve 24 them just as well to create an issue of 25 probable cause as it does your client to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792838 29 1 say, Well, all of these things were done? 2 And it then gets us back to what I 3 earlier asked, and that is, even if that's 4 taken as true, even if Rothstein was pumping 5 these cases up and claiming to these 6 investors that it was then publicly known 7 through primarily the press, media was 8 swarming -- as they should have been -- over 9 this absolute criminal act, the likes of 10 which, from an economic standpoint, from a 11 private individual, perhaps has still never 12 been seen before, other than Mr. Madoff in 13 New York. 14 But the point I'm trying to make is, it 15 still gets me back to that same question. 16 Yeah, Mr. Epstein may have been angry, he 17 may have been concerned about his friends, 18 the high-level people that he associated 19 with, and how this could drag him down as 20 well as them. Certainly a bona fide 21 concern, perhaps. 22 But then it gets to the question, yeah, 23 with all of that, it still gets me to my 24 original question and what the jury is going 25 to be asking, more importantly, how was DRAFT ONLY !!!! NOT PROOFREAD EFTA00792839 30 1 Mr. Epstein damaged as a result of this 2 activity? 3 MR. LINK: May I answer that question? 4 But then I have to weave back, because you 5 gave me something I have got to talk about. 6 THE COURT: Sure. 7 MR. LINK: The damage that he felt -- 8 now, let's keep in mind what case we're 9 trying today -- or will be trying -- which 10 is whether there was probable cause to go 11 forward. 12 THE COURT: Against Mr. Edwards? 13 MR. LINK: Against Mr. Edwards. We are 14 not trying the case against Mr. Edwards. We 15 don't have to prove who would have won that 16 case. So I'm going to get back to that in a 17 sec. 18 What he thought his damages were at the 19 time, his real dollar damages is that he was 20 spending money paying lawyers to defend what 21 was happening during this Rothstein period. 22 And so if you connect the dots and say, 23 okay -- you said it better than I did, 24 Judge. Rothstein is doing these criminal 25 activities, which included using my name, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792840 31 1 three legitimate lawsuits -- 2 THE COURT: Who is my? 3 MR. LINK: Mr. Epstein. 4 THE COURT: Okay. 5 MR. LINK: I keep trying to make you 6 Mr. Epstein for my example. It's the only 7 way it works for me. 8 If you're Mr. Epstein and you see -- 9 Judge, you see what's in the press and how 10 your -- I want to make this clear. We have 11 never challenged when Mr. Edwards filed them 12 that he didn't have a good faith, legitimate 13 basis to do so back in 2008. That's not 14 what this case is about. 15 But in 2009, if you're Mr. Epstein and 16 you see all of this information and you look 17 at what's happening here and you say, Have I 18 spent legal fees, paid my lawyers in order 19 to have to defend activity that was really 20 designed not to benefit the three 21 plaintiffs, but to let Rothstein take it and 22 show investors? 23 And we know, as a matter of fact, 24 Judge, that Rothstein did it. He used 25 bankers boxes from the Epstein cases. He DRAFT ONLY !!!! NOT PROOFREAD EFTA00792841 32 1 used flight manifests from the Epstein 2 cases. So he actually used the information 3 that was provided to him by Mr. Edwards to 4 show investors. 5 This is going to answer your question. 6 This is key. I think I remember your 7 question. This is key, if I remember your 8 question. You said what if Mr. Edwards had 9 a legitimate purpose? I believe Mr. Edwards 10 can get on the stand and persuade you, 11 Judge, he had a reasonable basis for doing 12 everything he did. 13 THE COURT: I didn't ask that question. 14 MR. LINK: Well, you said what if he 15 had a legitimate basis? What he was doing 16 was trying to benefit the three folks. 17 THE COURT: No. What I said was, 18 couldn't that information that you just 19 indicated to me that forms the basis for 20 Mr. Epstein allegedly bringing this suit, 21 could that not be -- could that not be 22 utilized by Mr. Edwards to submit to the 23 fact that -- submit the fact that the reason 24 why Epstein brought this suit in the first 25 place was one of trying to get back at DRAFT ONLY !!!! NOT PROOFREAD EFTA00792842 33 1 Edwards for inconveniencing his friends, for 2 dragging those friends -- high-level friends 3 into the process, for inconveniencing his 4 pilots? All of these things that I brought 5 out. That was the point that I made. 6 MR. LINK: What element of the claim is 7 that for? What element? That's malice. 8 It's not probable cause. What Mr. Edwards 9 thought, what he did, why he did it, has 10 nothing to do with probable cause. It may 11 have, Your Honor, a lot to do with malice. 12 THE COURT: I think it has a great deal 13 to do with probable cause, quite frankly. I 14 think it's a mixed bag, so to speak, when 15 you get to probable cause and malice. 16 I agree with you that probable cause 17 has to be proven before malice. But I think 18 that there are -- certainly, in a case like 19 this, which is an extremely unusual and 20 complex matter that there are lead-overs, if 21 you will, as it relates to probable cause 22 and the malice elements. And I don't think 23 it can be disputed here. This is not like 24 the simple cases that we read in Florida 25 Jurisprudence that deal with malicious DRAFT ONLY !!!! NOT PROOFREAD EFTA00792843 34 1 prosecution the more simple concrete-type of 2 cases that sets one plaintiff against one 3 defendant. This is different. 4 And I think that the issue of malice 5 and probable cause are going to be somewhat 6 congealed and somewhat of a lead-over from 7 probable cause to malice. Not vice versa. 8 I understand the parameters legally in that 9 regard. 10 MR. LINK: I agree with everything you 11 just said except -- without incurring the 12 wrath of the Court -- I have to dispute the 13 first part you said because I don't believe, 14 Your Honor, that the law is, what's in 15 Mr. Edwards' mind -- what's in Mr. Epstein's 16 mind about his reasons for bringing the 17 case, have anything to do with probable 18 cause. I think they have everything to do 19 with a malice. 20 And the law is very clear. You can't 21 use malice to demonstrate probable cause. 22 So if you can't use malice, what difference 23 does it make how much Mr. Epstein may have 24 hated Mr. Edwards and wanted to do him harm? 25 MR. SCAROLA: I thought that you were DRAFT ONLY !!!! NOT PROOFREAD EFTA00792844 35 1 pausing, and I wanted to raise a procedural 2 question. If you are pausing -- 3 MR. LINK: No problem. I never know 4 when I'm pausing either. 5 MR. SCAROLA: I have the same problem. 6 Your Honor, I'm a little bit confused 7 about the direction that that argument is 8 taking, because I thought we were arguing a 9 motion in limine to exclude evidence. And 10 once there's a concession that the evidence 11 is relevant to malice, even if we accept -- 12 and I don't -- that it's not relevant to 13 probable cause, it's relevant and it comes 14 in. 15 So I suggest that, since we have had an 16 on-the-record concession of the relevance of 17 the evidence, that part of the argument is 18 over. 19 THE COURT: Well I think Mr. Link -- I 20 am giving him latitude, because I 21 interrupted him to ask these questions that 22 really needed to be answered from my 23 standpoint. And as I look at these cases 24 that are going to trial, I also try to put 25 myself, not in either parties' shoes, but DRAFT ONLY !!!! NOT PROOFREAD EFTA00792845 36 1 certainly in juries' shoes when it comes to 2 questions that they're going to have, and 3 that really needs to be answered, because it 4 helps me to narrow the issues as well. So I 5 appreciate your courtesies in that respect. 6 MR. LINK: My pleasure, Your Honor. 7 THE COURT: Let's go ahead -- and if we 8 could, let's get to the core issues that 9 we're dealing with today and see where we 10 are, because Mr. Scarola also makes a good 11 point. I mean, a lot of this material that 12 seems to be a matter of your motion when it 13 comes to excluding this testimony or this 14 evidence, it's essentially been conceded 15 that most of this evidence is going to be 16 relevant. 17 MR. LINK: I didn't say that. I want 18 to be very clear. I did not say that the 19 evidence that he wants to submit or the 20 questions he asked or the exhibits that he 21 listed should come in on malice. What I 22 said to the court is that Mr. Epstein's 23 state of mind and how much he would have 24 disliked Mr. Edwards or wanted to hurt him 25 would be relevant to malice. That's very DRAFT ONLY !!!! NOT PROOFREAD EFTA00792846 37 1 different than asking the question about do 2 you have a preference for minor children. 3 THE COURT: So if we can, move now to 4 issues of evidence that is being sought to 5 be limited in terms of its introduction to 6 the jury. 7 MR. LINK: Yes, Your Honor. My partner 8 Ms. Rockenbach will handle that. 9 And, Your Honor, just so the Court's 10 aware, Ms. Rockenbach has a professionalism 11 meeting at Mr. Scarola's office that starts 12 at noon. Do you mind breaking at 11:45? 13 THE COURT: That's fine. I have a 14 court luncheon, as well, with my colleagues 15 down in the judicial dining room at noon, so 16 that's not a problem. 17 MS. ROCKENBACH: Your Honor, I would 18 like to take the first issue in the 19 omnibus -- revised omnibus motion in limine. 20 But before we talk about Fifth 21 Amendment, I just want cite one case to Your 22 Honor before we leave this arena of probable 23 cause. 24 When I was reviewing the case law in 25 preparation for this hearing, I chuckled to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792847 38 1 think that the Florida Supreme Court in 1926 2 called this an ancient action, malicious 3 prosecution. But it is that very case that 4 answers a point that Your Honor was just 5 discussing. I'm talking about the Tatum 6 Brothers case. And it says in Tatum 7 Brothers -- 8 THE COURT: Do you have a tab number 9 for me? 10 MS. ROCKENBACH: The tab number is -- I 11 don't know that actually. I might be able 12 to get that. 13 THE COURT: If it's in your binder, I 14 can probably find it. You did a good job 15 with your -- 16 MS. ROCKENBACH: The index. 17 THE COURT: -- index. Yeah. I don't 18 have a Tatum Brothers by that first name. 19 MS. ROCKENBACH: I apologize, Your 20 Honor. It's at 92 Florida 278, and it's 21 published in 1926. The court said it is 22 well established that want of probable cause 23 cannot be inferred from malice, however 24 great such malice may be, even the most 25 express malice. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792848 39 1 So before we leave that arena, that 2 case back in 1926 said that you can't go 3 backwards. You can't find malice then infer 4 probable cause. 5 THE COURT: I understand. I am just 6 making a point that, in this set of unusual 7 facts, it's not necessarily a clear-cut 8 distinction that can be drawn. 9 But again, sometimes facts will create 10 these types of issues and they will be 11 different than the 1926 set of facts. 12 But go ahead. 13 MS. ROCRENBACH: This is true. 14 So, Your Honor, the first issue about 15 the Fifth Amendment, I want to be clear that 16 with regard to probable cause, my client has 17 an original complaint that was filed against 18 Mr. Edwards in December of 2009. 19 He obviously didn't raise any Fifth 20 Amendment with regard to any allegations 21 that he filed in public court. 22 He also filed two affidavits. Did not 23 raise any Fifth Amendments with regard to 24 the statements and facts that he alleged in 25 those affidavits, one in 2013; and then the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792849 40 1 most recent, 2013. 2 There's a pending motion to strike the 3 2017 set for these pending motion hearings. 4 There was never any type of attack on 5 the 2013 affidavit and they are 6 substantially the same. 7 The third issue about substantive 8 testimony that my client gave that goes to 9 the probable cause issue were the two 10 depositions in which Mr. Scarola deposed 11 Mr. Epstein. And that first one was 12 March 17, 2010 -- and it's in the court 13 file -- it was approximately three hours. 14 And it's important, Your Honor, just if the 15 Court would indulge me to read a few 16 answers, because the point here is -- I 17 should have started with this. If I may use 18 the easel. 19 So really there were two categories of 20 questions that were asked of my client by 21 Mr. Scarola. Some pertain to Fifth 22 Amendment, which he raised, and some pertain 23 to the malicious prosecution action. 24 My client substantively answered in 25 that March 17, 2010 deposition -- under the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792850 41 1 column of malicious prosecution -- page 19, 2 Mr. Scarola asked, "Your complaint in this 3 action" -- he's referring to the malicious 4 prosecution action -- "alleges that L.M. 5 made claims for damages out of proportion to 6 alleged damages. What does that mean?" 7 "It means what it says." 8 Mr. Scarola: "I don't understand it. 9 Explain it to me." 10 Mr. Epstein substantively answered 11 questions related to his probable cause for 12 instituting the civil proceeding of 13 malicious prosecution when -- "I believe 14 that as part of the scheme to defraud 15 investors in South Florida out of millions 16 of dollars, claims of outrageous sums of 17 money were made on behalf of alleged victims 18 across the board, and the only way, in fact, 19 Scott Rothstein sits in jail. And what I 20 have read in the paper, claims that I 21 settled cases for $200 million, which is 22 totally not true. She has made claims of 23 serious sums of money, which is outrageous." 24 He answers the questions, "Have you 25 settled claims?" "Yes, I have." DRAFT ONLY !!!! NOT PROOFREAD EFTA00792851 42 1 Page 23 of the same deposition. My 2 client substantively answers the probable 3 cause question for why he brought -- and 4 Your Honor asked the question -- why did 5 Mr. Epstein file this malicious prosecution 6 action? He told Mr. Scarola back in 2010 -- 7 on page 23, Mr. Scarola said, "Did Brad 8 Edwards do anything that he shouldn't have 9 done that forms the basis of your lawsuit 10 against him?" 11 "Yes, many things." 12 "List them for me, please." 13 "He has gone to the media out of, I 14 believe, an attempt to gin up these 15 allegations. He has contacted the media. 16 He has used the media for his own purposes. 17 He has brought discovery. He has engaged in 18 discovery proceedings that bear no 19 relationship to any case filed against me by 20 any of his clients. 21 "His firm, which he is the partner of, 22 has been accused of forging a federal 23 judge's signature." 24 Those are but two -- just two that I 25 have taken and the Court has indulged me in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792852 43 1 reading substantive answers. 2 THE COURT: Believe me, I have read 3 these over and over again. They're 4 segregated in various motions that I have 5 been privy to, and I also have read the 6 transcript in full relative to Mr. Epstein's 7 questions. 8 The point that I tried to make with 9 Mr. Link was that, number one, if as a court 10 as a system of jurisprudence, we simply rely 11 upon the contentions of the now defendant in 12 a malicious prosecution claim as to probable 13 cause, then there would really be, 14 essentially -- there would be no malicious 15 prosecution claim that would be brought. 16 Secondly, I understand that it is the 17 plaintiff's burden of proof. Now, if it's a 18 pure legal question, the Court will deal 19 with that accordingly. But at least for now 20 we understand that it's the plaintiff's 21 burden to prove as to probable cause. 22 The point that I made and tried to make 23 with Mr. Link was if a defendant in a 24 malicious prosecution claim -- and I think 25 some of these cases speak essentially to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792853 44 1 that issue -- takes the Fifth Amendment in 2 similar types of cases, then the plaintiff's 3 position will never really be made known, 4 unless there's an introduction to some 5 degree of the fact that to certain 6 questions -- now graphic sexual questions, 7 the likelihood is I am not going to allow 8 those into evidence. 9 MS. ROCKENBACH: Understood. 10 THE COURT: I haven't heard from 11 Mr. Scarola, so I don't want to suggest that 12 I am prejudging anything. But there is a 13 bar that we need to respect as it relates to 14 the difference between relevant evidence and 15 a 403. I get it. 16 But at the same time, I think as the 17 judge, as opposed to an advocate, and taking 18 into consideration both sides' positions, I 19 have to recognize that there is a definitive 20 and direct correlation between the 21 invocation of Fifth Amendment rights as to 22 issues that would go to proof of probable 23 cause relating to the plaintiff's claim, and 24 not simply take Mr. Edwards' (sic) 25 contentions at face value. Because in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792854 45 1 circumstances, such as this one where the 2 Fifth Amendment has been discussed -- and in 3 the vast majority of cases has -- 4 Did I misstate something? 5 MR. SCAROLA: Yes, sir. You said 6 Mr. Edwards. You meant Epstein, I'm sure. 7 So the record is clear, I thought it 8 appropriate to correct that. 9 THE COURT: We have all made those 10 mistakes. I knew it was going to happen. I 11 apologize for it. I caught myself once 12 before. I apologize. 13 Madam Court Reporter, could you just 14 read back where I started with questioning 15 Mr. Rockenbach, please? 16 (Thereupon, the requested portion of the 17 record was read back by the reporter as 18 above duly recorded.) 19 THE COURT: With the vast majority of 20 cases that have dealt with this tension, the 21 allowance on a limited basis of the 22 invocation of the Fifth Amendment makes 23 perfect sense, because logically it is a way 24 for the plaintiff in the malicious 25 prosecution claim -- Edwards -- to be able DRAFT ONLY !!!! NOT PROOFREAD EFTA00792855 46 1 to prove the case -- at least prove probable 2 cause. It makes sense. 3 And if I can divine common sense from 4 these cases, then I feel I have made some 5 reasonably decent strides. But it makes 6 sense. I don't know if you can really argue 7 with that logic. 8 MS. ROCKENBACH: I don't, Your Honor. 9 There's a caveat. We agree with the Court, 10 and we would rely on two cases for this 11 point, because we are talking about -- the 12 reason I drew that line for Fifth Amendment 13 and malicious prosecution is we're talking 14 about whether Mr. Edwards can, in this 15 malicious prosecution case, read questions 16 to the jury that my client took the Fifth 17 Amendment to and draw a negative inference 18 therefrom. 19 The US Supreme Court in Baxter -- 20 that's the case -- that's the Fifth 21 Amendment case -- it says, "It's key that 22 there's independent evidence existing of the 23 fact to which the parties refuse to answer." 24 That's one building block for this 25 issue. The second building block is a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792856 47 1 Fourth DCA decision called Frazier versus 2 Security and Investments, 1993. What does 3 Frazier tell us? Not only do we build off 4 the US Supreme Court and say you have to 5 have independent evidence in order to use 6 this Fifth Amendment adverse inference, but 7 Frazier says that this adverse inference is 8 limited against parties when they refuse to 9 testify in response to probative evidence 10 offered against them. Probative evidence 11 offered against them. 12 We looked at those three rings earlier. 13 This lawsuit here is not the ring 14 involving -- I am going to say them all 15 wrong -- E.W., L.M. and Jane Doe. It's not. 16 This is the malicious prosecution ring and 17 suit. 18 So the reason I read some excerpts from 19 Mr. Epstein's deposition to Your Honor is to 20 show that he didn't take the Fifth Amendment 21 on issues relevant to why he filed the 22 malicious -- why he filed his civil 23 proceeding, the underlying suit for this 24 malicious prosecution case against 25 Mr. Edwards. He substantively answer those DRAFT ONLY !!!! NOT PROOFREAD EFTA00792857 48 1 questions. 2 What he didn't answer were questions 3 that would fall in the Fifth Amendment 4 column that would be relevant in those three 5 claimants' lawsuits or claims or criminal 6 action. 7 In that substantive three-hour 8 deposition taken of my client, he was asked, 9 "How many children have you sexually 10 abused?" Have you ever sexually abused 11 children? Have you ever socialized with -- 12 and then he was asked about public 13 figures -- the governor of New Mexico? 14 "On how many occasions did you solicit 15 prostitution? How many prostitutes do you 16 contend you solicited? How many minors have 17 you procured for prostitution. These are 18 questions -- How many times did you engage 19 in oral sex with females under age 18?" 20 These have no relevance to the 21 malicious action. And those are the very 22 questions that we are asking Your Honor to 23 not only preclude from being admitted to -- 24 into evidence or any reference in the 25 malicious prosecution, but also to preclude DRAFT ONLY !!!! NOT PROOFREAD EFTA00792858 49 1 Mr. Edwards from using the Fifth Amendment 2 right against self-incrimination when those 3 very questions have, A, no probative value 4 in this lawsuit, no probative evidence, 5 whatsoever; and B, there is no independent 6 evidence -- 7 THE COURT: I knew you all worked very 8 hard in having produced these materials, and 9 you all got involved somewhat late in the 10 game, but what I didn't get is a definitive 11 list of questions and answers that are 12 sought to be excluded. 13 Globally, as I indicated, and thus far, 14 my inclination is not to allow those types 15 of questions to be asked of Mr. Epstein or 16 to be utilized as -- to be published to the 17 jury. 18 However, questions that deal with the 19 fact that suits were brought against 20 Mr. Epstein by at least the three people 21 that were brought -- other suits that were 22 brought against Mr. Epstein either by minors 23 or by women of age that were actually filed 24 or claims that were made and were paid by 25 Mr. Epstein, those types of questions, I DRAFT ONLY !!!! NOT PROOFREAD EFTA00792859 50 1 believe, are going to be of probative value, 2 which is essentially relevance, defined as 3 tending to prove or disprove a material 4 fact. 5 What's the material fact? You can 6 answer it or I will answer it. 7 MS. ROCKENBACH: I have a question for 8 Your Honor. But go ahead. 9 THE COURT: What I would perceive to 10 being the probative issue or the relevance 11 gets to why Mr. Epstein brought this claim 12 in the first place. A basic question, as I 13 mentioned before, that the jury is going to 14 have and the Court has, and for them to be 15 hamstrung from asking those questions, flies 16 in the face, as far as I'm concerned, of the 17 majority of the cases that I have read that 18 touch on these types of cases. They may not 19 be a specific malicious prosecution case, 20 but the logic still is maintained. You see? 21 It can be differentiated -- some of 22 these graphic questions that I'm not going 23 to repeat here, but are a matter of public 24 record and are in the materials far more 25 graphic than what you have given us as DRAFT ONLY !!!! NOT PROOFREAD EFTA00792860 51 1 exemplars -- and I respect the fact that you 2 didn't need to bring those into the record 3 today. 4 But what I am saying is that it goes 5 back into the logic that I described 6 earlier. 7 MS. ROCRENBACH: Your Honor mentioned 8 two categories -- 9 THE COURT: And I'm not -- excuse me 10 for a moment. I apologize for that. But 11 I'm not trying to be definitive as far as 12 the categories that are going to be or not 13 be allowed. What I'm trying to give you is 14 some type of global perspective, because, as 15 I said before, unfortunately, whether it's 16 time or whatever it may have been, the 17 questions, to my knowledge, have not been 18 segregated out. So as to go through on a 19 question-by-question basis, yes or no. That 20 may have to be done at a later time. 21 But what I'm trying to do is indicate 22 to you that from a jury perspective, they 23 are going to need to know what fueled 24 potentially, Mr. Epstein. Was it what he 25 says, or at least from a circumstantial DRAFT ONLY !!!! NOT PROOFREAD EFTA00792861 52 1 standpoint, and based upon his refusal to 2 answer questions germane to those three 3 pseudonym -- the pseudonyms used by those 4 plaintiffs and others who have brought 5 claims -- I don't think those three cases, 6 to my recollection, were the only three 7 cases that were brought -- maybe by 8 Mr. Edwards. 9 MS. ROCKENBACH: They were the only 10 ones brought by Mr. Edwards. And that leads 11 me to the point -- I was going to jump back 12 with Your Honor and say, you identified two 13 categories and you said it's potentially 14 relevant and probative to discuss those 15 three that were the three lawsuits and 16 others. 17 THE COURT: Are you going to tell me 18 that he -- part of -- Mr. Epstein did not 19 bring any cases against any of the other 20 lawyers? Is that what you're going to 21 suggest? 22 MS. ROCKENBACH: Number one, that is 23 true and correct and accurate. He did not. 24 And those other cases -- any other claims 25 that were not being represented by DRAFT ONLY !!!! NOT PROOFREAD EFTA00792862 53 1 Mr. Edwards, they have no relevance to 2 Mr. Epstein's lawsuit that he brought in 3 December of 2009. 4 THE COURT: You can argue that. I have 5 no problem with that argument. 6 MS. ROCKENBACH: But, Your Honor, as 7 you've recognized, Your Honor is the 8 gatekeeper. And introducing evidence that 9 has absolutely no probative value and no 10 relevance would be very harmful, 11 inflammatory and clearly prejudice my client 12 from -- 13 THE COURT: I understand the point. 14 You can proceed. 15 MS. ROCKENBACH: Thank you, Your Honor. 16 MR. LINK: Your Honor, can I offer a 17 suggestion based on what I have heard? 18 THE COURT: Any objection, Mr. Scarola? 19 MR. SCAROLA: No, sir. 20 THE COURT: Yes, sir. 21 MR. LINK: Your Honor raises a good 22 point, which is, without the specific 23 questions in front of you, it makes it more 24 difficult. 25 And I do apologize. You're right. We DRAFT ONLY !!!! NOT PROOFREAD EFTA00792863 54 1 scrambled up until 10 o'clock the night 2 before Thanksgiving. 3 THE COURT: That's why I wasn't 4 criticizing anybody for not having -- 5 MR. LINK: And we didn't take it that 6 way, Judge. 7 But I do think it would be helpful for 8 the Court and for the parties if we go 9 through the questions and the answers -- 10 there's not that many of them, frankly -- 11 and have the Court make a ruling, because 12 without doing it question by question from 13 the depositions, you are giving this general 14 guidance, but it doesn't help us get ready 15 for the jury trial, Your Honor. 16 THE COURT: I agree. I agree. And I 17 have no problem with that. We have set 18 aside several days in order to deal with 19 that. 20 But we can talk about the general 21 theory of the utilization of the Fifth 22 Amendment and how that is going to be 23 presented to the jury. So let's go on and 24 proceed further, please. 25 Thank you, Mr. Link. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792864 55 1 MR. LINK: Thank you, Judge. 2 MS. ROCKENBACH: Thank you, Your Honor. 3 I have provided Your Honor with the law 4 that really is central and core to your 5 gatekeeping function under 90.401 and 403. 6 And the point is that there's no probative 7 evidence. These Fifth Amendment questions 8 that were asked of my client -- 9 THE COURT: No probative value. 10 MS. ROCKENBACH: No probative value. 11 And the Frazier -- the Fourth DCA says that 12 even that adverse inference against parties 13 when they refuse to testify in response to 14 probative evidence offered against them. 15 If my client had taken the Fifth 16 Amendment when Mr. Scarola asked a question 17 about what did Mr. Edwards do to wrong you? 18 How did he abuse his license to practice 19 law, and my client said Fifth Amendment, 20 absolutely, that is a question that would 21 not only get read, it would get the adverse 22 inference. 23 But the questions that were asked of my 24 client have zero probative value and are not 25 anything related to the issues of probable DRAFT ONLY !!!! NOT PROOFREAD EFTA00792865 56 1 cause in this action. 2 So I might suggest that since 3 Mr. Scarola is the proponent of those 4 questions and that evidence, that he would 5 identify questions that he wants to present 6 to which my client pled the Fifth. 7 Before I stop speaking, though, just 8 one other point. Mr. Edwards wants to use 9 my client's invocation of the Fifth 10 Amendment as a gag order on the column of 11 malicious prosecution answers, meaning, in 12 one of his motions it's to strike the 13 affidavit. 14 And to be clear to the court, we are 15 not submitting an affidavit as testimony at 16 trial. We wouldn't do that. But it is a 17 blueprint for what my client would testify 18 to, as is the complaint that my client filed 19 against Mr. Edwards. 20 Those were the allegations and the 21 facts and circumstances, which goes to 22 probable cause that Mr. Epstein relied on in 23 December of 2009. So Mr. Edwards is moving 24 to strike the affidavit, and based on the 25 Fifth Amendment, says that my client can't DRAFT ONLY !!!! NOT PROOFREAD EFTA00792866 57 1 use it sword and shield. My client is not 2 using Fifth Amendment as sword and shield 3 whatsoever. 4 In the example I gave Your Honor, that 5 would be a sword and shield if my client 6 refused to answer the question of why he 7 filed the original proceeding against 8 Mr. Edwards in December of 2009, why he 9 instituted that action, Fifth Amendment, 10 that would be a sword and shield, and they 11 could get an adverse inference. 12 So part of my omnibus -- revised 13 omnibus motion in limine and the response 14 to, I think, Mr. Edward's motion to strike 15 my client's affidavit, implicates the Fifth 16 Amendment. 17 THE COURT: We will take up with the 18 striking of the affidavit separately. 19 MS. ROCKENBACH: Okay. 20 THE COURT: I don't think -- 21 MR. SCAROLA: That issue is moot. The 22 affidavit is not going to come into 23 evidence, obviously. It was moved to be 24 stricken as support for a motion that has 25 already been denied. So I don't know why DRAFT ONLY !!!! NOT PROOFREAD EFTA00792867 58 1 we're talking about striking the affidavit. 2 MS. ROCKENBACH: Good. Then it seems 3 that it's moot by Mr. Edwards and we will 4 move on. But we wanted to make sure that 5 that testimony that's provided in the 6 affidavit should not be under some type of 7 gag order. My client should be able to 8 testify as to what -- why he had probable 9 cause. 10 THE COURT: My position, before 11 Mr. Scarola mentioned its mootness, was that 12 as long as the information that's set forth 13 in the affidavit, which by the way -- and 14 it's not uncommon -- as brilliant as both 15 sides are, I didn't have a copy of the 16 affidavit. 17 MS. ROCKENBACH: I apologize to the 18 Court for that. 19 THE COURT: It's okay. While it may 20 have been attached somewhere -- one other 21 thing. I don't know why Mr. Scarola, from 22 your office, I didn't receive any binder or 23 anything else. I had to, last night, copy 24 the replies and the responses to take home 25 with me. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792868 59 1 MR. SCAROLA: We work in a binder-free 2 zone, Your Honor. 3 THE COURT: That's fine. But I do 4 require -- because most -- as last night -- 5 most of my preparation is done at home. And 6 I'm so tired of looking at computers that 7 it's much easier for me to have the hard 8 copies. 9 I know others are much more computer 10 savvy when it comes to those kinds of 11 things. But I just find it more comfortable 12 to be able to have something in my hand and 13 read it. If you can kindly go ahead and 14 forward them to me so -- last night getting 15 the responses and having my JA I commend 16 her for staying as late as she did last 17 night and getting all of that material and 18 helping getting it all marshaled -- 19 Again, I just wanted to gently remind 20 you folks that I may do things differently 21 than others in the sense that I still like 22 to have hard copies and not to sit there in 23 front of a computer later in the evening. 24 Anyway. Sorry I got off on that 25 tangent. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792869 60 1 Did you want to add anything else? 2 MS. ROCKENBACH: Yes, Your Honor. As 3 part of that omnibus motion in limine, we 4 somewhat moved on from the Fifth Amendment 5 questions and answers, because I think 6 Mr. Scarola may want to tee up for the Court 7 what precise questions that he is seeking to 8 admit and introduce into evidence, so that 9 Your Honor can rule on each one. Perhaps we 10 can take that up after lunch. I'm not sure 11 if that works. 12 THE COURT: I would like to hear some 13 of Mr. Scarola's arguments now. I would 14 like to get into the global issue of the 15 Fifth Amendment, as well as parameters that 16 he believes are appropriate as it concerns 17 the nature of the questions that are going 18 to be sought to be introduced and the 19 invocation of the Fifth Amendment and where 20 we stand currently. 21 Because if I'm understanding correctly, 22 because of the pendency of that federal 23 lawsuit, essentially Mr. Epstein is going to 24 be taking the same position now as he has in 25 the past? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792870 61 1 MS. ROCKENBACH: With regard to the 2 Fifth Amendment? 3 THE COURT: Yes, ma'am. 4 MS. ROCKENBACH: Yes, Your Honor. 5 That's correct. I want to make sure. But 6 not with regard to any probable cause 7 questions, like those that were asked in his 8 depositions, to which he did not invoke the 9 Fifth Amendment. 10 They were relevant questions to this 11 action. He will not be invoking the Fifth 12 as to those questions. But yes, consistent 13 with the questions that were asked of him in 14 his deposition, to which he invoked the 15 Fifth, he will be doing that again. 16 THE COURT: And you're not, at this 17 point -- because I know that the 18 counter-plaintiff Edwards was concerned 19 about retracting any of his Fifth Amendment 20 invocations. That is not planned at this 21 juncture? 22 MS. ROCKENBACH: That's correct, Your 23 Honor. 24 THE COURT: So that obviates, then, the 25 need for Mr. Scarola to redepose DRAFT ONLY !!!! NOT PROOFREAD EFTA00792871 62 1 Mr. Epstein? 2 MS. ROCKENBACH: Correct. 3 THE COURT: Mr. Scarola, thank you for 4 your patience. You may proceed, sir. 5 Thank you, Ms. Rockenbach and Mr. Link, 6 for your written and oral presentations. 7 MR. SCAROLA: Thank you very much, Your 8 Honor. If you don't mind, I'm going to 9 stand at the podium that says, Plaintiff. 10 Your Honor, there is a very fundamental 11 disagreement between present counsel for 12 Mr. Epstein and Mr. Edwards. You heard 13 Mr. Link say -- and I think I took down the 14 quote exactly -- we have never challenged 15 that these three cases were legitimate 16 cases. 17 Well, I can understand why it is that 18 at this point in the litigation, Mr. Link 19 wishes that they had never challenged that 20 these three cases were legitimate cases. 21 But the fact of the matter is that 22 Bradley Edwards was sued for ginning up, 23 fabricating, constructing those three cases, 24 and others, as a knowing participant in 25 Florida's largest ever Ponzi scheme, that DRAFT ONLY !!!! NOT PROOFREAD EFTA00792872 63 1 is, there were two clearly identifiable 2 allegations of wrongdoing contained within 3 the complaint filed by Bradley Edwards. 4 He was alleged to have fabricated these 5 cases. And it was alleged that the reason 6 why he fabricated the cases was as a knowing 7 participant in the Ponzi scheme. 8 I can provide the court -- and I will 9 do that -- with a copy of the complaint that 10 was filed in this action. We've highlighted 11 various allegations in that complaint, Your 12 Honor, that specifically include the 13 assertions that Bradley Edwards was involved 14 in manufacturing, fabricating, ginning up 15 these claims. 16 In paragraph seven, it is alleged that 17 L.M. was an essential participant in the 18 scheme referenced in this complaint, by 19 among other things, substantially changing 20 prior written sworn testimony so as to 21 assist the defendants, plural, in promoting 22 their fraudulent scheme for the promise of a 23 multi-million dollar recovery relevant to 24 civil actions, defined below, involving 25 Epstein, which was completely out of DRAFT ONLY !!!! NOT PROOFREAD EFTA00792873 64 1 proportion to her alleged damages. 2 If we go to paragraph 30, "By using the 3 civil actions against Epstein as bait and 4 fabricating settlements regarding same, 5 Rothstein and others were able to lure 6 investors into Rothstein's lair and bilked 7 them of millions of dollars which, in turn, 8 were used to fund the litigation against 9 Epstein for the sole purpose of continuing 10 the massive Ponzi scheme." 11 "The sole purpose of continuing the 12 massive Ponzi scheme." These weren't 13 legitimate claims. They were being used 14 solely to fund the Ponzi scheme, according 15 to the allegations. 16 Thirty-one. "As part of this scheme, 17 Rothstein and the litigation team" -- and 18 the litigation team is defined in the 19 complaint as Brad Edwards. 20 Paragraph E: -- "utilized the judicial 21 process, including, but not limited to, 22 unreasonable and unnecessary discovery for 23 the sole purpose of furthering the Ponzi 24 scheme." 25 Forty. "Edwards filed amended answers DRAFT ONLY !!!! NOT PROOFREAD EFTA00792874 65 1 to interrogatories in the state court 2 matters, E.W. and L.M., and listed 3 additional high-profile witnesses that would 4 allegedly be called at trial, including, but 5 not limited to:" And then various 6 individuals are identified. 7 And then paragraph 41. "The sole 8 purpose of the scheduling of these 9 depositions was, again, to pump up the cases 10 to investors. There is no evidence to date 11 that any of these individuals had or have 12 any knowledge regarding RRA's civil 13 actions." 14 THE COURT: For the record, that's a 15 quote from paragraph 41, as opposed to 16 argument. 17 MR. SCAROLA: Thank you. Sir. I'm 18 sorry. 19 If we go to page 18 of the complaint, 20 subparagraph H. "Rothstein" -- and again, 21 this is a quote. 22 "Rothstein and the litigation team knew 23 or should have known that their three filed 24 cases were weak and had minimal value for 25 the following reasons." DRAFT ONLY !!!! NOT PROOFREAD EFTA00792875 66 1 Those reasons are listed. 2 Again, questioning the legitimacy of 3 the claims. 4 Page 21, paragraph 44. "The actions 5 described in paragraph 42 above herein had 6 no legitimate purpose in pursuing the civil" 7 litigations (sic) "against Epstein, but 8 rather were meant to further the fraudulent 9 scheme and criminal activity of Rothstein." 10 Paragraph 46, the last line. "RRA and 11 the attorneys in the civil actions" -- 12 Please remember, the civil action is a 13 defined term in the complaint. It's L.M., 14 E.W. and Jane Doe's claims -- "needed to 15 create a fiction that included extraordinary 16 damages. However, the actual facts behind 17 her action would never support such 18 extraordinary damages." 19 Going down to the last sentence in 20 subparagraph A. "Under the circumstances, 21 her claim for damages against Epstein, one 22 of L.M.'s many johns during that same 23 period, would be so incredible and certainly 24 not likely to produce the extraordinary 25 settlements promised to RRA's investors." DRAFT ONLY !!!! NOT PROOFREAD EFTA00792876 67 1 Paragraph 49 of page 27, second 2 sentence. "Rather than evaluating and 3 resolving the cases based on the merits, 4 that is, the facts, which included 5 knowledgeable, voluntary and consensual 6 actions by each of the claimants and 7 substantial pre-Epstein psychological and 8 emotional conditions," et cetera. 9 So again, the allegation is that these 10 children were knowledgeable, voluntary and 11 consensual participants. 12 THE COURT: Let me ask you this. My 13 memory is good, but not great. The three 14 litigants that Mr. Edwards represented and 15 perhaps still represents -- L.M., E.W. and 16 Jane Doe -- were they all allegedly 17 underaged at the time of these encounters? 18 MR. SCAROLA: Yes, sir, they were. So 19 that obviously, as a matter of law, they 20 were incapable of consenting. 21 The last sentence I want to reference 22 in this case, Your Honor, appears at page 23 30. The last sentence in paragraph 52, in 24 order to continue to bring in moneys from 25 investors, Rothstein and other DRAFT ONLY !!!! NOT PROOFREAD EFTA00792877 68 1 co-conspirators used the civil actions 2 against Epstein, along with other 3 manufactured lawsuits, as a means of 4 obtaining massive amounts of money." 5 So when opposing counsel tells you, We 6 have never challenged that these three cases 7 were legitimate, again, while I understand 8 why they wish that were true, that is not 9 true. 10 And when Mr. Epstein was deposed in 11 this action, Mr. Epstein was asked about 12 what he meant when he testified that these 13 cases were ginned up. And what he said 14 was -- referring to L.M., E.W. and Jane 15 Doe -- what he said was, Well, when I said 16 ginned up, I meant manufactured, fabricated 17 cases. 18 And the assertion is made that he never 19 asserts the Fifth Amendment with regard to 20 matters that are relevant to probable cause, 21 as to whether he had a legitimate basis to 22 claim that Bradley Edwards fabricated these 23 cases. 24 Page 34, the deposition of March 17, 25 2010 at line 23, quote, Specifically, what DRAFT ONLY !!!! NOT PROOFREAD EFTA00792878 69 1 are the allegations against you which you 2 contend Mr. Edwards ginned up? 3 Answer: "I would like to answer that 4 question. A, many of the files and 5 documents that we've requested from 6 Mr. Edwards and the Rothstein firm are still 7 unavailable. 8 "With respect to anything that I can 9 point to today, I'm, unfortunately, going to 10 have to take the Fifth Amendment on that, 11 the Sixth and Fourteenth." 12 Now, that's just one very obvious 13 example where he's asked directly, what are 14 the allegations that you claim in your 15 complaint are ginned up, and he refuses to 16 answer the question on basis of the Fifth 17 Amendment privilege. There are many others. 18 And the question is posed, which 19 questions do I want to place before the jury 20 as to which Mr. Edwards -- excuse me, I did 21 it -- to which Mr. Epstein has asserted the 22 Fifth Amendment, and the answer is every 23 single one of them. 24 THE COURT: And that's where we're 25 going to have difficulty. As far as the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792879 70 1 Court is concerned the case that -- strike 2 that. 3 The question and answer that was just 4 provided would be admissible. What we're 5 talking about, Mr. Scarola, are questions 6 that were cited in the motion and that the 7 court has chosen not to read, that are of a 8 graphic, sexual nature, and have, to my 9 recollection, a general form of question, as 10 opposed to specifics: Have you ever done 11 certain things to minors? Have you ever 12 been with prostitutes? Have you ever -- 13 things of that nature. 14 MR. SCAROLA: I don't recall that last 15 question, but I understand the Court's -- I 16 understand the Court's concern. 17 THE COURT: Ms. Rockenbach's question. 18 Again, I know you understand it, but I 19 want to make sure that the record is clear, 20 and that's this. I have an obligation, as 21 both sides are well aware, to ensure that we 22 are working on a level playing field to the 23 extent that it is possible. 24 I have the obligation, as 25 Ms. Rockenbach points out, to be the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792880 71 1 gatekeeper of evidence and to ensure to the 2 best of my ability that we are not going to 3 be engaging in pejorative name-calling types 4 of questioning, nor are we going to get into 5 inflammatory types of questioning just for 6 the sole purpose of information. 7 Now, I know you wouldn't do that. But 8 at the same time, as advocates, your 9 respective positions have to be clear-cut in 10 favor of your respective clients. 11 However, as I said earlier, it really 12 becomes an issue of drilling down into the 13 specifics before I can make rulings on the 14 actual questions that are being sought to be 15 introduced. 16 So the global aspect of the Court's 17 decision at this time, until I look at the 18 actual questions, is essentially this. And, 19 that is, that I'm going to permit -- and 20 we've already gotten a stipulation on the 21 record by Mr. Epstein's counsel, which I 22 appreciate -- that is, he's not going to be 23 receding from his Fifth Amendment 24 invocations. He's not going to be changing 25 his testimony, so as to necessitate further DRAFT ONLY !!!! NOT PROOFREAD EFTA00792881 72 1 discovery as it relates to his testimonial 2 evidence that has already been presented. 3 Therefore, those questions that deal 4 with, for example, the question that you 5 asked and answered, would be admissible. 6 Those, because of the reasons that I stated 7 earlier, would seem to make common sense to 8 me and seems to be the thrust of the 9 decisions of the court's, whether in Florida 10 or outside of Florida -- the vast majority 11 being outside of the state and some from the 12 federal courts -- and, that is, that the 13 Fifth Amendment cannot be used to take away 14 Mr. Edwards' ability to prove his case or 15 prove the probable cause element. 16 So to the extent that it would be 17 needed to go in front of the jury, any 18 questions that deal with the issue of 19 Mr. Epstein's lawsuits brought by 20 Mr. Edwards on behalf of the respective 21 clients, would be germane. And any 22 invocation, such as what was illustrated 23 here, would be germane and relevant and 24 found to be admissible. That's the core 25 ruling of the Court. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792882 73 1 Now, when it comes to issues of general 2 graphic questioning, such as what has been 3 exemplified by way of the 4 counter-defendant's motion, those will not 5 be permitted. 6 The closer question, and the one that I 7 need to drill down further, is one of -- 8 because the complaint -- and I appreciate 9 the fact that you brought this with you 10 today and provided it to me -- because the 11 complaint delineates the nature of the 12 allegations -- at least from a summary 13 perspective of the three claims -- how much 14 are we going to be able to introduce, if 15 those questions were asked? I haven't 16 memorized the deposition testimony. 17 There were at least two depositions, if 18 I'm not mistaken. 19 MS. ROCKENBACH: Yes, Your Honor. 20 THE COURT: Two depositions. I haven't 21 memorized that testimony. 22 But since the complaint -- let me cite 23 to you exactly where we are -- where I am 24 alluding to here. Page 18 and it states, 25 "Rothstein and the litigation team knew or DRAFT ONLY !!!! NOT PROOFREAD EFTA00792883 74 1 should have known that their three filed 2 cases were weak and had minimal value for 3 the following reasons." 4 Then it goes through "L.M. testified 5 she had never had any type of sex with 6 Epstein; worked at numerous clubs; is an 7 admitted prostitute and call girl; has a 8 history of illegal drug use" (pot, 9 painkillers Xanax, Ecstasy); and continually 10 asserted the Fifth Amendment during her 11 depositions in order to avoid answering 12 relevant but problem questions for her. 13 "E.W. testified she worked 11 separate 14 strip clubs, including Cheetah, which RRA 15 represented and in which Rothstein may have 16 owned an interest. And E.W. also worked at 17 Platinum Showgirls in Boynton Beach, which, 18 as the subject of a recent police raid, 19 where dancers were allegedly selling 20 prescription painkillers and drugs to 21 customers and prostituting themselves. 22 "Jane Doe (federal case) seeks 23 $50 million from Epstein. She and her 24 attorneys claim severe emotional distress as 25 a result of her having voluntarily gone to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792884 75 1 Epstein's home. She testified that there 2 was never oral, and/or sexual intercourse; 3 nor did she ever touch his genitalia. Yet, 4 Jane Doe suffered extreme emotional distress 5 well prior to meeting Epstein as a result of 6 having witnessed her father murder his 7 girlfriend's son. She was required to give 8 sworn testimony in that matter and has 9 admitted that she lied in sworn testimony. 10 Jane Doe worked at two different strip 11 clubs, including Platinum Showgirls in 12 Boynton Beach." End quote. 13 That's going to be a matter for further 14 discussion, as far as what, if any, 15 questions were related to those three 16 individuals, and whether Mr. Epstein refused 17 to answer those questions. 18 Because if he did refuse to answer 19 those questions specific to those three 20 individuals, then the likelihood is -- again 21 without prejudging -- I haven't looked at 22 those questions -- that I will admit those 23 into evidence, because they relate directly 24 to Mr. Epstein's claim in his deposition and 25 his repeated claim that these cases were, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792885 76 1 quote, ginned up, end quote, and had no 2 merit until rather recently. 3 MR. SCAROLA: And in that regard, Your 4 Honor, obviously, if the defense is going to 5 take the position, as they have stated on 6 the record now, that these were all 7 legitimate claims, the extent to which we 8 need to get into details with regard to what 9 happened between Jeffrey Epstein and each of 10 the three claimants against him is going to 11 be very different than if they persist in 12 challenging the legitimacy of the claims. 13 Now, if they do that, if they are 14 continuing to challenge the legitimacy of 15 the claims, despite the on-the-record 16 announcement that's just been made, this is 17 going to be a very different trial than if 18 they come in and say, In spite of the fact 19 that Jeffrey Epstein alleged that Bradley 20 Edwards fabricated these claims, we no 21 longer take that position. We recognize the 22 fact that these were, indeed, legitimate 23 claims, very valuable legitimate claims. So 24 valuable that we settled them for $5.5 25 million in combination. And extremely DRAFT ONLY !!!! NOT PROOFREAD EFTA00792886 77 1 valuable claims because of the punitive 2 damage exposure that Mr. Epstein confronted. 3 How much we need to prove is dependent 4 upon how much is contested. 5 I doubt that they are going to concede 6 punitive damage liability. 7 THE COURT: Where are we on that? Has 8 there been a ruling on the punitive damage 9 claim? 10 MR. SCAROLA: We have an amended 11 permitted by the Court. There is a punitive 12 damage claim pending against Mr. Epstein. 13 There are pending issues with regard to 14 the implications of Fifth Amendment 15 assertions with regard to issues concerning 16 net worth, because among the questions he's 17 refused to answer are any questions relating 18 to his net worth. 19 THE COURT: Okay. But there is a 20 current punitive damage claim? 21 MR. SCAROLA: Absolutely. Yes, sir. 22 THE COURT: I just want to make sure. 23 The way it was written, it was a little bit 24 cryptic in terms of pending. I didn't know 25 if it was still a motion that needed to be DRAFT ONLY !!!! NOT PROOFREAD EFTA00792887 78 1 heard in that regard. That's all been taken 2 care of. 3 MR. LINK: I think Judge Crow entered 4 that order, Your Honor. 5 MR. SCAROLA: All over but the jury 6 verdict. 7 Your Honor, in the 10 minutes or nine 8 minutes now that I have left before lunch, I 9 want to go through something that I think 10 will be helpful to the Court. 11 In resolving some of the issues that 12 Your Honor has focused on, which clearly are 13 issues of concern with regard to how 14 probable cause is proven in the context of a 15 Fifth Amendment assertions on the part of 16 the defendant who won't talk about some 17 elements -- 18 MR. LINK: Mr. Scarola, may I interrupt 19 for one second? Do you mind? 20 MR. SCAROLA: Yes, sir. 21 MR. LINK: Judge, I want to make sure 22 this is clear, because I thought I stated 23 this very clearly, but sometimes what comes 24 our of my mouth isn't what's in my head. 25 THE COURT: It's okay. Go ahead. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792888 79 1 MR. LINK: Which is, I believe I very 2 clearly said that we have never taken the 3 position that during the time that 4 Mr. Edwards was a sole practitioner, when 5 these cases were filed up to the point that 6 he joined Mr. Rothstein's firm, did we 7 contend that he was doing anything that was 8 inappropriate. 9 THE COURT: Okay. 10 MR. LINK: During the time that he was 11 at the Rothstein firm -- if you will read 12 the complaint -- everything that Mr. Scarola 13 just read to you was all during the time he 14 was employed at Mr. Rothstein's firm. 15 There is not an allegation in this 16 complaint that relates to the time period 17 from when they were filed until he joined 18 Mr. Rothstein's firm. 19 That's a very significant distinction, 20 because we are absolutely going to say that 21 Mr. Rothstein himself was using -- 22 MR. SCAROLA: I'm sorry. Could I 23 finish my argument in the few minutes that 24 are left before we hear rebuttal? 25 THE COURT: But it may be helpful to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792889 80 1 hear what Mr. Link is trying to suggest so 2 that you can formulate your argument. 3 MR. SCAROLA: I know exactly -- 4 THE COURT: I will give him a minute. 5 MR. LINK: I don't want to take long. 6 I just want to clarify, because Mr. Scarola 7 said that we have conceded that nothing was 8 fabricated. 9 What was fabricated was not the filing 10 of the three lawsuits in 2008. It was that 11 there were other claims in addition to those 12 three, and that one of these three settled 13 for 30 million, and that Mr. Epstein had 14 offered $200 million. Those are the things 15 that we were talking about during that time 16 period. 17 THE COURT: Well, the allegation, 18 though, in subparagraph H, which was already 19 read into the record -- I will read it 20 again, quote, Rothstein and the litigation 21 team -- parenthetically Mr. Scarola has 22 suggested that the litigation team is 23 defined as Mr. Edwards -- returning to the 24 quoted provisions -- knew or should have 25 known that their three filed cases were weak DRAFT ONLY !!!! NOT PROOFREAD EFTA00792890 81 1 and had minimal value -- and for the reasons 2 I have already gone through in addressing 3 what I think is going to be relevant as to 4 those three individuals if the contention is 5 still that these claims were not legitimate 6 during the period of time that Mr. Rothstein 7 ad Mr. Edwards worked together. 8 MR. LINK: I just want to make this 9 distinction. I don't want to beat this 10 horse too much. If you look at the 11 paragraph before that paragraph, it talks 12 about the $500 million settlement. 13 THE COURT: I will take that in 14 consideration. 15 MR. LINK: So it's relative to that. 16 Second, Your Honor -- 17 MR. SCAROLA: I'm sorry. I would like, 18 in the few minutes remaining, to be able to 19 make some points before -- 20 THE COURT: Mr. Link, I am going to ask 21 you, then, to save your commentary for 22 rebuttal. 23 MR. LINK: I just was trying to answer 24 your questions. 25 THE COURT: I didn't know I had a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792891 82 1 question pending, but I appreciate it. 2 MR. LINK: My pleasure. 3 MR. SCAROLA: Your Honor, I have 4 prepared an outline, which I hope is of some 5 help to the Court in placing these issues in 6 context. 7 The first thing that Your Honor needs 8 to determine is the issue that we have been 9 focusing on. What are the factual 10 allegations that we claim were maliciously 11 prosecuted against Bradley Edwards? 12 Now, what we have just heard is an 13 effort to draw a distinction that is not 14 drawn in the complaint. What we heard is we 15 claim that the legitimate cases that were 16 filed by Bradley Edwards while he was the 17 sole practitioner somehow became 18 illegitimate the moment he walked trough the 19 door of RRA. That's what we just heard. 20 That just doesn't make any sense. That's 21 not the allegation in the complaint. 22 The allegation in the complaint -- and 23 as testified to by Mr. Epstein repeatedly in 24 his deposition -- the allegation in the 25 complaint is Bradley Edwards, quote, ginned DRAFT ONLY !!!! NOT PROOFREAD EFTA00792892 83 1 up these claims and he describes that as he 2 crafted the complaints, he fabricated the 3 complaints. 4 Now ginned up doesn't happen to appear 5 in Merriam-Webster's dictionary. But there 6 are sources that define ginned up. 7 The Oxford Dictionary says ginned up 8 means to generate or increase something, 9 especially by dubious or dishonest means. 10 The McMillan dictionary: To create, to 11 generate, especially artificially or by 12 dubious means. 13 The Free Dictionary: To create or 14 produce. 15 So what we are alleged to have done is 16 to have generated by dubious and dishonest 17 means, claims on behalf of three individuals 18 who really weren't victims for the sole 19 purpose -- as Mr. Epstein repeatedly 20 alleges -- for the sole purpose of 21 supporting a massive Ponzi scheme, in which, 22 as Your Honor as observed repeatedly -- and 23 I will get to this in just a moment -- 24 Jeffrey Epstein could not possibly have been 25 a victim. Didn't know about it. Didn't DRAFT ONLY !!!! NOT PROOFREAD EFTA00792893 84 1 know anybody involved in it. Didn't know it 2 was going on until after it was over. 3 Didn't spend a single penny investing in his 4 own fabricated settlements. 5 And to the extent that he claims his 6 damages are attorney's fees for what was 7 going on while these cases were being 8 prosecuted, Your Honor is very, very 9 familiar with the litigation privilege, and 10 knows that nothing that went on in the 11 course of the prosecution of those cases, 12 whether it was legitimate or illegitimate, 13 can form the basis of a separate civil 14 lawsuit. 15 Motion for contempt, motion to impose 16 sanctions, 57.105 motion, bar complaint -- a 17 lot of other remedies are available, but not 18 a separate civil action, because he had to 19 spend attorney's fees on what he claims were 20 illegitimate discovery pursuits, which the 21 evidence will show were totally and 22 completely justified, and in many cases 23 initiated long before Bradley Edwards ever 24 became a member of RRA. 25 So, even if it were not already clear DRAFT ONLY !!!! NOT PROOFREAD EFTA00792894 85 1 that -- 2 THE COURT: You are talking about the 3 expenditure of attorney's fees? 4 MR. SCAROLA: Yes. That's correct. 5 Could not be damages. Just can't be as a 6 matter of law. 7 Even if it were not already clear that 8 Epstein alleged Brad fabricated the three 9 cases he was prosecuting against Epstein, 10 that's the only allegation that could 11 possibly support a claim against Brad -- 12 because as I mentioned -- because of the 13 litigation privilege. 14 But in addition to that, he suffered no 15 damage from the Ponzi scheme. He didn't 16 even know about it. Any action Brad took in 17 the course of prosecuting those three cases, 18 absolutely privileged. 19 And as a matter of law, it has been 20 established in this case that there was no 21 evidence to support those claims, because we 22 filed a motion for summary judgment. On the 23 eve of the motion for summary judgment, 24 without ever having filed any opposition 25 whatsoever, he voluntarily dismissed those DRAFT ONLY !!!! NOT PROOFREAD EFTA00792895 86 1 claims. That issue has been resolved. 2 So we must prove lack of probable cause 3 as to either/or both of the two false 4 claims. We have to prove Epstein did not 5 have a reasonable basis to believe that Brad 6 fabricated the three claims, and he didn't 7 have reasonable basis to allege that Brad 8 was a knowing participant in the Ponzi 9 scheme. 10 How do we do that when there is a Fifth 11 Amendment assertion? How do we prove what 12 Epstein reasonably believed when he blocks 13 relevant discovery with the assertion, not 14 only of a Fifth Amendment privilege, but of 15 a clearly legitimate attorney-client 16 privilege as well? 17 And Your Honor has read the 18 depositions. You know all of the relevant 19 questions that were not answered with regard 20 to attorney-client privilege are matched by 21 the number of relevant questions to which he 22 asserts attorney-client privilege as well. 23 So where do we go from there? And the 24 answer -- 25 THE COURT: Take about two minutes to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792896 87 1 wrap up. I want to respect the fact that I 2 have already allowed Ms. Rockenbach to leave 3 at 11:45. 4 MR. SCAROLA: Yes. Thank you. I will, 5 Your Honor. 6 The answer lies in a very fundamental 7 presumption. And that fundamental 8 presumption is every person is presumed to 9 have intended the natural and probable 10 consequences of his act. Very basic 11 principle of law. It is cited specifically 12 in the case that I have on this page. But 13 it is a universal principal of law 14 recognized in all American jurisdictions. 15 So, proof that Epstein filed a false 16 claim against Bradley Edwards gives rise to 17 the presumption that he intended to file a 18 false claim against Bradley Edwards. 19 Florida statute 90.301 through 304 -- 20 those are three provisions of the evidence 21 code -- talk about the effect of that 22 presumption -- and I won't go into that now. 23 I will wait until after lunch -- but, 24 basically, this lays out the way this case 25 is proved. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792897 88 1 If we prove that these were not false 2 claims, if we prove that Jeffrey Epstein 3 knew they weren't false claims, because he 4 was the one who physically participated in 5 doing what he is alleged to have done, so he 6 had to have known what he did -- once we've 7 proven that, the presumption arises he 8 intended to file knowingly false claims 9 against Bradley Edwards and we have shifted 10 the burden of proof to him to prove one of 11 two things: the claims were true. That's a 12 defense. The other defense is, Well, we 13 know the claims were not true, but I 14 reasonably believed them to be true at the 15 time. 16 Thank you, sir. I will leave it right 17 there. 18 THE COURT: Thank you, again, both 19 sides for your excellent presentations. 20 Thank you to our courtroom personnel as 21 well. 22 What we are going to do is return at 23 about 1:40. I have something that I need to 24 do between the lunch, which I'm going to 25 leave a little early and an errand I need DRAFT ONLY !!!! NOT PROOFREAD EFTA00792898 89 1 do. So come back at 1:40. 2 What I propose we will do is I will 3 give you two hours this afternoon. We will 4 go to about 3:40, and then proceed back with 5 the remaining issues on the days that we 6 have already set aside. 7 Again, thank you all very much for your 8 courtesies. Have a pleasant lunch. We will 9 reconvene at 1:40. We will be in recess. 10 Thank you. 11 (A recess was had 11:48 a.m. - 1:44 p.m.) 12 THE COURT: Good afternoon, everybody. 13 Welcome back. Okay let's go ahead and 14 proceed then. 15 Mr. Scarola, you were in the midst of 16 your PowerPoint. 17 MR. SCAROLA: Thank you, sir. Yes. 18 Your Honor, just to recap the point at 19 which we broke off, the defense has taken 20 the position that the Baxter and Frazier 21 cases stand for the proposition that the 22 Fifth Amendment may not be the sole basis 23 upon which a plaintiff rests its case to 24 satisfy the burden of proof with regard to 25 any element of the plaintiff's claim. We DRAFT ONLY !!!! NOT PROOFREAD EFTA00792899 90 1 don't take issue with that. That's good 2 law. 3 You cannot determine from a Fifth 4 Amendment adverse inference alone whether 5 probable cause did or did not exist. And 6 that's why I have reviewed with Your Honor 7 what the other evidence is that both 8 directly and circumstantially establishes 9 that there was an absence of probable cause. 10 We begin with a point that one is 11 presumed to have intended that which one 12 did. And Jeffrey Epstein when he filed 13 claims, demonstrated to be false, is 14 presumed to have intended to file claims 15 that were false. 16 We are not taking about malice yet. 17 Independent of any evidence that relates to 18 malice, we get to prove the truth of Brad 19 Edwards' underlying claims on behalf of 20 L.M., E.W. and Jane Doe. 21 So that then brings us -- 22 THE COURT: I think I have already 23 essentially ruled on that from a global 24 standpoint. I am in agreement with you that 25 any Fifth Amendment invocations as it DRAFT ONLY !!!! NOT PROOFREAD EFTA00792900 91 1 pertains to L.M., E.W. and Jane Doe -- 2 again, globally and without getting into 3 graphic -- I intend to admit as being 4 relevant. 5 You can proceed. 6 MR. SCAROLA: Thank you very much, Your 7 Honor. 8 So we had broken off at this point 9 where I began to talk about Florida Evidence 10 Code sections 90.301 through 304. And I 11 have a copy of those evidence code 12 provisions that I will provide to the Court. 13 I have provided them to opposing counsel as 14 well. 15 THE COURT: Thank you. 16 MR. SCAROLA: These provisions focus on 17 the shifting burden of proof, what a 18 presumption does and what a presumption does 19 not do. And I have underlined some sections 20 here for Your Honor that I think are of 21 particular significance in those three 22 evidence code provisions. 23 And basically the gist of these 24 evidence code provisions is that once we 25 have proven that these were false claims, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792901 92 1 once we have adduce proof that these were 2 false claims, and take advantage of the 3 presumption that the filing of knowingly 4 false claims gives rise to one is presumed 5 to have intended to do that, which one did, 6 and presumed to have intended the natural 7 and probably consequences of filing false 8 claims, then the burden shifts. 9 And that's the point at which we broke 10 for lunch, where I pointed out that at that 11 point Mr. Epstein has every right to come in 12 and say, now, Wait a second. You have put 13 on evidence that these were false claims -- 14 I mean, that these were valid claims, but I 15 have the right to come in put on evidence 16 that they were not valid claims. And he 17 absolutely does. 18 THE COURT: I think that was the gist 19 of my point I made earlier regarding the 20 fact that we can't take it from one side 21 only. And that if the proof is essentially 22 within the invocation of the Fifth 23 Amendment, i.e., the questions that were 24 asked that would be pertinent to the issues 25 of probable cause but refuse to be answered, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792902 93 1 then Edwards should not be penalized because 2 of that. 3 MR. SCAROLA: Yes, sir. And I 4 certainly agree with it. And that's why I 5 made the comment that it becomes significant 6 when the defense stands up during the course 7 of this argument and says we are not 8 claiming that these were fabricated claims 9 at the point in time at which Brad Edwards 10 is a sole practitioner. We're claiming they 11 became fabricated claims after he joined 12 RRA. And then I guess what they're saying 13 is they're unfabricated when he settled them 14 for $5.5 million. 15 If he wants to try to make that 16 argument to the jury, that's fine. He can 17 try to make that argument to the jury. I 18 don't think it's going to go anywhere as a 19 matter of fact, nor do I think it's going to 20 go anywhere as a matter of law. But he can 21 try it. He can try to say the valid claims 22 got unvalidated and then got validated 23 again, and I settled them for $5.5 million. 24 At any rate, the burden does shift to 25 him. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792903 94 1 Now, he can also say that these were 2 valid claims, but I reasonably believe them, 3 mistakenly, but reasonably believed them to 4 be invalid claims. I had probable cause to 5 support my malicious prosecution claim, 6 because I thought, mistakenly, but 7 reasonably, that they were invalid claims. 8 Then we get to the fact that Epstein 9 cannot reasonably believe what Jeffrey 10 Epstein knows to be false. 11 And Jeffrey Epstein knows whether he 12 molested these children or he didn't molest 13 these children. 14 So if we prove that he molested them, 15 he cannot contend he reasonably believed 16 that he didn't molest them. 17 We proved he knew the cases were 18 fabricated with proof that he actually 19 molested L.M, E.W. and Jane Doe. We proved 20 that these were not ginned up cases. These 21 were not fabricated or created, not ginned 22 up by proving that he settled them for $5.5 23 million, not while he was under some 24 misapprehension about what these cases were 25 all about, but after the Ponzi scheme was DRAFT ONLY !!!! NOT PROOFREAD EFTA00792904 95 1 fully and completely disclosed. After he 2 read all of these news articles that he 3 claims that he relied on -- or that his 4 lawyers claimed he relied on, because he 5 hasn't made those claims, but his lawyers 6 have made those claims -- and we proved the 7 cases weren't fabricated, with proof of his 8 guilty plea to the molestation of children 9 with his Fifth Amendment assertion. Because 10 his Fifth Amendment assertion at that point 11 clearly is relevant and material, and an 12 adverse inference can be drawn from that. 13 We proved that he did not have a basis 14 to file these claims, because he fails to 15 defend against the summary judgment, 16 voluntarily dismisses the cases, and never 17 refiles them. 18 No question about the fact that at this 19 important in time there has been a bona fide 20 resolution of his claims in favor of Bradley 21 Edwards. And we proved the cases were not 22 ginned up by proving similar fact evidence. 23 And Your Honor made some reference to 24 this, but I want to be sure that we focus 25 specifically on this aspect of the case, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792905 96 1 because one of the things that the defense 2 is attempting to exclude is any reference to 3 anything other than L.M., E.W. and Jane Doe 4 cases. 5 Your Honor suggested -- and I thought 6 that I heard you correctly -- that evidence 7 with regard to other claims actually filed 8 against Epstein would be relevant and 9 material. And clearly it is. 10 THE COURT: I believe what I said was 11 those cases filed by Mr. Edwards were any 12 claims that were made against Epstein by a 13 client represented by Mr. Edwards. 14 Tell me why you think that the 15 aggregate cases not having anything to do 16 with Mr. Edwards' representation or 17 Rothstein firm's representation -- because 18 Mr. Berger, I think, was involved in some 19 respects as well. 20 MR. SCAROLA: Co-counsel. 21 THE COURT: Solely as co-counsel -- I 22 believe that to be the case -- are you 23 suggesting that the aggregate cases would be 24 relevant? 25 MR. SCAROLA: Yes, sir. And they are DRAFT ONLY !!!! NOT PROOFREAD EFTA00792906 97 1 relevant for multiple reasons. 2 Your Honor will recall the chart that 3 was put up by opposing counsel that 4 attempted to summarize all of those things 5 that Jeffrey Epstein could have reasonably 6 relied upon to -- I guess what they're 7 saying now is mistakenly conclude that Brad 8 Edwards was part of this Ponzi scheme. And 9 among those things that are referenced in 10 that chart were Brad Edwards' efforts to -- 11 for example -- and this is only one 12 example -- to take discovery from pilots 13 about what was going on on Jeffrey Epstein's 14 private planes when all of Brad Edwards' 15 three clients acknowledged that they were 16 not passengers on the planes. 17 And that is true. It is true that all 18 of Brad Edwards' clients acknowledged that 19 they were not passengers on Jeffrey 20 Epstein's private jets. But both the 21 Florida Evidence Code and federal rules of 22 evidence expressly permit the federal rules 23 are very explicit about this: Expressly 24 admit the introduction of evidence with 25 regard to other child molestations in any DRAFT ONLY !!!! NOT PROOFREAD EFTA00792907 98 1 child molestation claim. 2 THE COURT: So let's talk about that 3 for a minute. Because again, what I don't 4 want this to turn into is a case testing 5 whether or not Epstein was an alleged serial 6 child molester. It would not, in my view, 7 pass muster legally, and I don't want to try 8 this case twice. 9 I think that we should be extremely 10 circumspect when it deals -- when we are 11 dealing with global issues of molestation of 12 graphic descriptions of any types of alleged 13 molestation, except where we are dealing 14 with claims that have been brought on behalf 15 of those represented by Mr. Edwards. 16 The risk of error, if we go beyond that 17 intended limitation, is significant. And I 18 want to make sure that we, again, are 19 focused on the elements of the claim. And 20 whether it be for compensatory damages 21 associated with Mr. Edwards' claim or 22 punitive damages associated with 23 Mr. Edwards' claim, we are still dealing 24 with a malicious prosecution claim, solely a 25 malicious prosecution claim. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792908 99 1 And so to deviate from that direction 2 would be precarious and concerning to the 3 Court, in particular, because when we're 4 dealing with issue of probable cause, we're 5 focusing on -- as I've made clear -- not 6 only Mr. Epstein's stated intent, but I 7 fully intend to allow circumstantial 8 evidence, inclusive of the invocation of the 9 Fifth Amendment relevant questions 10 pertaining to the plaintiff's -- the 11 counter-plaintiff's, more precisely -- 12 Mr. Edwards' position to explain to the jury 13 why -- or to the Court -- why Mr. Epstein 14 brought this claim. What were the true 15 motivating factors concerning same. 16 To allow this to intrude into 17 allegations of serial molestation is 18 dangerous and is concerning. 19 You may proceed. 20 MR. SCAROLA: Thank you, Your Honor. I 21 acknowledge the legitimacy of the Court's 22 concern. And I recognize the fact that the 23 Court, appropriately, under Rule 403 must 24 balance probative value against prejudice. 25 However, as soon as Mr. Epstein takes DRAFT ONLY !!!! NOT PROOFREAD EFTA00792909 100 1 the position, as he has in this 2 demonstrative exhibit that -- 3 THE COURT: Show me where, please. 4 MR. SCAROLA: Let's go through these 5 and -- let me zoom in. On this top line are 6 all of those circumstances subsequent to 7 4/9/09 when Bradley Edwards became a member 8 of Rothstein, Rosenfeldt & Adler, which 9 counsel says gave raise to a reasonable 10 suspicion that Bradley Edwards was a knowing 11 participant in the Ponzi scheme and was 12 using fabricated claims to support that 13 Ponzi scheme. 14 Let's take them one at a time. 15 Jane Doe move to unseal the 16 non-prosecution agreement. 17 Now, the non-prosecution agreement is 18 expressly referenced in the complaint, as is 19 the Crime Victims' Rights Act case. 20 So if Jeffrey Epstein is going to say 21 efforts to unseal the non-prosecution 22 agreement contributed to his reasonable 23 belief that Bradley Edwards was a knowing 24 participant in the Ponzi scheme, we need 25 explain what the non-prosecution agreement DRAFT ONLY !!!! NOT PROOFREAD EFTA00792910 101 1 was. 2 THE COURT: Okay. 3 MR. SCAROLA: And what the 4 non-prosecution agreement was, was a deal 5 that Jeffrey Epstein entered into with the 6 federal government to avoid criminal 7 prosecution for the molestation of 8 approximately 40 children. Bradley Edwards 9 was challenging the validity of 10 non-prosecution agreement by filing a Crime 11 Victims' Rights Act case, also referenced in 12 the complaint. 13 THE COURT: So let's stop there for a 14 minute and let's refocus ourselves on the 15 motion that's before the Court. It's a 16 motion in limine, particularly -- from this 17 Court's perspective, important as it relates 18 to the invocation of the Fifth Amendment and 19 attorney-client privilege, whatever that 20 might amount to be. 21 If you ask Mr. Epstein -- or if you 22 have asked Mr. Epstein a question regarding 23 whether or not he was motivated to sue 24 Mr. Edwards because in part of the move by 25 Jane Doe through Mr. Edwards -- as I DRAFT ONLY !!!! NOT PROOFREAD EFTA00792911 102 1 understand, Mr. Edwards has been counsel. 2 MR. SCAROLA: Yes, sir. Pro bono 3 counsel in that case for many years. 4 THE COURT: And you ask Mr. Epstein is 5 it not true that you entered into this 6 non-prosecutorial agreement because of X, Y 7 and Z, I don't think there's a problem with 8 that. 9 In other words, if he refuses to answer 10 the question, then I think that can be 11 admitted. 12 A question of whether you are a serial 13 child molestation would fail the 403 14 analysis in my view. 15 MR. SCAROLA: I'm sorry. If I led the 16 Court to believe that that's what the 17 question was going to be, then I wasn't 18 communicating very well. 19 THE COURT: You have always 20 communicated exceptionally well, so could 21 very well be my error. 22 So tell me what is the intend, then -- 23 do you recall the questions that have been 24 asked, if any, regarding this particular NPA 25 that he failed to respond at this point? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792912 103 1 MR. SCAROLA: No, sir. I can't recall 2 those offhand. 3 What I was addressing was not 4 specifically a Fifth Amendment issue. 5 Although, I recognize the fact that this 6 motion is supposed to be focused on the 7 Fifth Amendment. But Your Honor, I thought, 8 raised the question about whether we were 9 going to get into the existence of other 10 claims besides the claims of L.M., E.W. and 11 Jane Doe. And that's what I was responding 12 to. 13 I was pointing out that there is 14 absolutely no way to avoid getting into the 15 existence of those other claims, because 16 Epstein has raised those issues in the 17 complaint he filed against Brad Edwards. 18 And he is relying upon those circumstances 19 by virtue of the presentation that is being 20 made being made during this hearing to 21 suggest to Your Honor, One of the reasons 22 why I had probable cause to believe that 23 this was maliciously prosecuted case against 24 me was because of what went on after Brad 25 Edwards joined RRA in moving to set aside DRAFT ONLY !!!! NOT PROOFREAD EFTA00792913 104 1 the non-prosecution agreement. 2 So if that's what he's telling you he 3 intends to prove, I'm simply pointing out to 4 Your Honor -- and I can go through this. 5 It's going to come up in almost every one of 6 these elements -- while I understand the 7 Court's concern about trying to narrow the 8 focus, the door has been blown off the 9 hinges by Mr. Epstein's own complaint. And 10 his lawyers have taken that door and thrown 11 it out the window when they argued to Your 12 Honor that one of the reasons why we 13 believe -- or Jeffrey Epstein reasonably 14 believed that Brad Edwards was a knowing 15 participant in the Ponzi scheme, is because 16 he moved to set aside the non-prosecution 17 agreement after he joined RRA. 18 Now, many aspects of this timeline -- 19 THE COURT: I have to say, I really 20 don't understand the connection, but I will 21 give Mr. Link to explain it to me. 22 MR. SCAROLA: I'm not sure I understand 23 it either, but this is their exhibit. They 24 are the ones that are saying this was the 25 basis for our making this determination, or DRAFT ONLY !!!! NOT PROOFREAD EFTA00792914 105 1 for Mr. Epstein reasonably believing that 2 Brad Edwards was a knowing participant in 3 the Ponzi scheme. 4 THE COURT: Just for the record, there 5 was never a malicious prosecution claim 6 filed by Epstein -- 7 MR. LINK: There was not, Your Honor. 8 THE COURT: Abuse of process claim? 9 MR. LINK: Yes. 10 THE COURT: Juts so that the record is 11 clear. 12 MR. SCAROLA: Abuse of process claim. 13 MR. LINK: And, Your Honor, if I may 14 just point out -- 15 THE COURT: No, not right now, please. 16 You will have amble opportunity to rebut. 17 MR. LINK: Thank you, Judge. 18 THE COURT: I don't want to get into 19 what we did this morning. 20 MR. SCAROLA: So all I am responding 21 to -- and maybe this isn't the appropriate 22 time to that -- is the idea that we are able 23 to sanitize this case to the point where we 24 are not going to be talking about a variety 25 of other claims that were being prosecuted DRAFT ONLY !!!! NOT PROOFREAD EFTA00792915 106 1 by other plaintiffs' lawyers working 2 together with Brad Edwards, and not going to 3 be talking about the Crime Victims' Rights 4 Act case, because as Your Honor has 5 repeatedly acknowledged, motive is going to 6 be very significant. And we intend to prove 7 that Jeffrey Epstein's motive in filing 8 these knowingly false claims against Brad 9 Edwards his motive was to extort Bradley 10 Edwards into abandoning or cheaply 11 compromising the rights of his clients, and 12 abandoning his efforts through the Crime 13 Victims' Rights Act case to set aside the 14 non-prosecution agreement. 15 He had an enormous economic motive, if 16 he could limit his civil exposure, and he 17 had a tremendous motive, in terms of the 18 criminal liability he faced, and the way he 19 chose to address that was, I'm going to make 20 an example out of Brad Edwards, who ha taken 21 a leadership role among all these plaintiffs 22 lawyers, and I'm going to target one of 23 these victims. I'm going to sue them both, 24 and I'm going to show them what happens when 25 you try to take on this billionaire. That's DRAFT ONLY !!!! NOT PROOFREAD EFTA00792916 107 1 what he was trying to do. Plain and simple. 2 And we are entitled, I respectfully suggest, 3 to be able to prove just how big a motive 4 that was. What's at stake. 5 THE COURT: I'm not in disagreement 6 with you. 7 When this went on the board, my first 8 response to Mr. Link and his presentation as 9 to Mr. Epstein's reasons were what? Was 10 that this can be turn around directly to 11 harm potentially Mr. Epstein and provide 12 Mr. Edwards with the motivation. So I'm not 13 in disagreement with you. 14 The only thing I am concerned with -- 15 certainly one of the more pertinent things 16 that I am concerned with for today's 17 hearing, again, relates back to how far we 18 are going to permit the jury to hear, or how 19 much we are going to permit the jury to hear 20 as it relates to these other claims. 21 Now, as you further described it -- 22 again, subject to Mr. Link's rebuttal -- 23 there is no way around the fact that the NPA 24 is going to become a part of this trial. 25 As I have indicated earlier, and the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792917 108 1 reason for my question, was to ensure that 2 my understanding was correct that the 3 principle reason -- or a principle reason 4 Mr. Epstein continues to invoke the Fifth 5 Amendment is because of the pendency of this 6 NPA case, correct? 7 MR. LINK: Generally, yes. It's not 8 the pending of the NPA case, but it's the 9 case -- 10 THE COURT: The potential of a 11 criminal -- further criminal exposure if the 12 NPA gets revoked -- or whatever the 13 terminology is -- 14 MR. LINK: That's correction, Your 15 Honor. 16 THE COURT: -- in Judge Marra's court, 17 assuming he's still the Judge on the case. 18 MR. SCAROLA: Just to clarify that 19 point, if I could. 20 THE COURT: Sure. 21 MR. SCAROLA: The non-prosecution 22 agreement is an agreement with the U.S. 23 Attorney's office for the Southern District 24 of Florida. It extends immunity to 25 Mr. Epstein and his unnamed co-conspirators DRAFT ONLY !!!! NOT PROOFREAD EFTA00792918 109 1 for crimes claims committed in the Southern 2 District of Florida. 3 So even if per chance the Crime 4 Victims' Rights Act case were to go away 5 tomorrow, which seems highly unlikely, 6 Mr. Epstein will still have a valid right to 7 assert a Fifth Amendment privilege. And I 8 acknowledge that. I haven't challenged the 9 validity of his Fifth Amendment assertion. 10 What we are talking about is not his 11 right to assert it, it's the consequences of 12 that assertion. 13 THE COURT: And to respectfully bring 14 us back into focus on what's before the 15 Court, generally, the invocation of the 16 Fifth Amendment, and bringing out the fact 17 that the NPA in some form or fashion, 18 because of it being a reason for the 19 invocation of the Fifth Amendment, is going 20 to be mentioned during the trial. There's 21 no way around it. 22 MR. LINK: We understand that, Judge. 23 THE COURT: Fine. 24 The question that I am going to pose to 25 you and Mr. Scarola now is how far we are DRAFT ONLY !!!! NOT PROOFREAD EFTA00792919 110 1 going to go with that agreement and where 2 the 403 analysis has to focus. So -- 3 Not now. When you have your 4 opportunity. 5 Mr. Scarola. 6 MR. LINK: Champing at the bit, Your 7 Honor. 8 MR. SCAROLA: Your Honor, I believe 9 that it is unavoidable that the jury be 10 informed as to what the non-prosecution 11 agreement is. It would be our intention to 12 enter it into evidence. They need to 13 understand what the Crime Victims' Rights 14 Act is. What they don't need to do is to 15 resolve the legitimacy of 40 other 16 plaintiffs' claims. 17 Now, some of Mr. Epstein's (sic) 18 clients -- in fact, I think all three of 19 them -- are identified in the 20 non-prosecution agreement. So Mr. Epstein, 21 as part of the non-prosecution agreement, 22 agrees to compensate each of these 40 people 23 under specific circumstances. And that gets 24 us into a discussion as to why the federal 25 lawsuit was filed. And this is something DRAFT ONLY !!!! NOT PROOFREAD EFTA00792920 111 1 that we have referenced briefly in argument 2 before Your Honor earlier. But -- 3 THE COURT: I want to stay on this 4 subject for just a moment, if I could. And 5 that is, tell me why you believe that the 6 motivation that Mr. Epstein may have had to 7 file this suit was relating to or is related 8 to this Jane Doe moving to unseal the NPA. 9 Explain that to me again, please. 10 MR. SCAROLA: Yes, sir. 11 I think that obviously motive can only 12 be proven through circumstantial evidence if 13 the defendant is not confessing. And not 14 only is Mr. Epstein not confessing, he's 15 refusing to give considerable relevant 16 testimony because of his assertion of both 17 the attorney-client privilege in the absence 18 of any assertion of advice of counsel 19 defense, as we have already established, and 20 his Fifth Amendment privilege. So we need 21 to prove what his motive is 22 circumstantially. 23 And Mr. Epstein clearly knows that 24 Mr. Edwards is lead counsel in this Crime 25 Victims' Rights Act case. He clearly knows, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792921 112 1 because he's a participant in that case. He 2 has intervened in the case. He knows that 3 the consequences of that Crime Victims' 4 Rights Act case could be that he loses the 5 immunity that he negotiated with the U.S. 6 Attorney's Office. 7 So being able to push Brad Edwards 8 aside as the primary moving force in the 9 Crime Victims' Rights Act case is obviously 10 a reasonable conclusion from those 11 circumstances. But it goes beyond that, 12 because direct threats were made to Bradley 13 Edwards by Jeffrey Epstein. 14 THE COURT: So the suggestion, I guess, 15 from the defense, the malicious prosecution 16 claim of Mr. Epstein is that he found it 17 necessary to file the lawsuit -- strike 18 that. 19 Yeah. He found it necessary to file 20 the lawsuit against Rothstein, Edwards and 21 L.M., because he felt that by doing this 22 unsealing it was motivation, it was 23 exposure, it was public information so as to 24 allegedly gin up these three claims held by 25 the three plaintiffs with the initials and DRAFT ONLY !!!! NOT PROOFREAD EFTA00792922 113 1 the Jane Doe. 2 MR. SCAROLA: Yes. 3 THE COURT: On the other hand, as I 4 indicated, the reverse effect taking place, 5 would be Mr. Edwards' position that in fact 6 the ill motive was the fact that -- and to 7 file this lawsuit against Edwards and 8 others -- was because Mr. Epstein was being 9 exposed, if you will. 10 MR. SCAROLA: Poor choice of words. 11 THE COURT: Pardon me? 12 MR. SCAROLA: Poor choice of words. 13 That was a joke, Your Honor. A bad one. 14 THE COURT: That's okay. I understand. 15 So that's essentially what I am 16 understanding count -- point counterclaim. 17 MR. SCAROLA: Yes, sir. 18 My only point is, we can't avoid 19 getting into that. As soon as they raise 20 it, we can make the counterpoint. We can 21 explain why it was done. And the same thing 22 is true with regard to everything else that 23 is on this list. The claim for 24 $50 million -- 25 THE COURT: I'm not sure that they even DRAFT ONLY !!!! NOT PROOFREAD EFTA00792923 114 1 have raise it for it to be relevant. 2 MR. SCAROLA: I don't think they do, 3 because we have an obligation to prove our 4 case. We get to prove malice. 5 THE COURT: Well, I am even talking 6 about probable cause. 7 MR. SCAROLA: And probable cause. Yes, 8 sir. I agree. We can prove probable cause. 9 We can prove what Mr. Epstein knew. We can 10 prove his motives, and we can prove malice 11 as part of proving probable cause. 12 But I don't think it's necessary to 13 ever parse out is this relevant to probable 14 cause only, is it relevant to malice only. 15 If it's relevant to one or the other it 16 comes in. 17 THE COURT: And the 40 individuals that 18 you are contending and that's the subject to 19 this NPA are all minors? 20 MR. SCAROLA: Yes, Your Honor. 21 And what the federal law says is 22 $150,000 per molestation. That's what the 23 federal law says. And what the NPA says is 24 if these claim are brought pursuant to the 25 federal statute, you are not going to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792924 115 1 contest your liability. 2 Now, what they did contest is whether 3 it's 150,000 per molestation, or 150 cap. 4 So once you pay the 150,000 you get to 5 molest these kids as many times as you want 6 to. 7 THE COURT: Per claim? 8 MR. SCAROLA: Yes. So that was an 9 issue. But that's the reason why -- and the 10 jury is going to need to hear this -- why 11 does Brad Edwards file a 256-page -- or 256- 12 paragraph -- whatever it is -- or 256 13 counts -- 14 THE COURT: 254-page -- 15 MR. SCAROLA: Whatever it is. Why does 16 he file this lengthy federal case? Was that 17 really as an effort to try to gin up these 18 cases for purposes of participating in a 19 Ponzi scheme or was there an independent 20 legitimate basis for doing what he did? 21 THE COURT: Of course, the interesting 22 part of that is from the timeline, the 23 complaint filed -- the federal complaint, 24 234-page federal complaint was filed after 25 the settlement of three cases. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792925 116 1 MR. SCAROLA: No, sir. I don't think 2 so. 3 MR. LINK: No. 4 THE COURT: I thought that the 5 settlement was 7/6 -- I'm sorry. My bad.I 6 was reading '09. The 7/27/09, and then 7 7/6/10. That was my error. 8 MR. SCAROLA: Yes, sir. 9 And you may recall -- we have already 10 made reference to the timing of the filing 11 of that federal case that we were obliged to 12 file within two years after L.W. coming of 13 age. She was about to celebrate her 20th 14 birthday and it needed to be filed within 15 that time. 16 THE COURT: There were statute of 17 limitations issues. Again, another 18 counterpoint. 19 MR. SCAROLA: Exactly correct. 20 Absolutely. 21 I am only suggesting to Your Honor that 22 it is very difficult to be able to say as a 23 blanket matter, I am not going to let in 24 evidence of these other claims. 25 THE COURT: Again, I am not taking that DRAFT ONLY !!!! NOT PROOFREAD EFTA00792926 117 1 position yet. What I'm saying is that on a 2 matter-by-matter basis -- and we are using 3 Mr. Epstein's timeline and those pertinent 4 events, which are noted therein -- if there 5 were questions that relate to the NPA that 6 were asked of Mr. Epstein and he did not 7 answer based on Fifth Amendment grounds, the 8 inclination -- again, without reading 9 question by question, would be to allow that 10 in, subject again, to the issue of multiple 11 claimants, if you will, the 40 minors that 12 you represented to the Court. 13 But again, when we look at it from the 14 standpoint of both sides trying to balance 15 this as best I can under 403. 16 On the one hand we have 17 Mr. Edwards taking strike that -- 18 Mr. Epstein taking the position that doing 19 what was done by Jane Doe through 20 Mr. Edwards as counsel was an attempt to 21 publicize and to sensationalize the 22 circumstances so as to increase the value of 23 at least the claims that were held by the 24 Rothstein firm. 25 MR. SCAROLA: Which I think is what DRAFT ONLY !!!! NOT PROOFREAD EFTA00792927 118 1 every lawyer is supposed to do within the 2 bounds of propriety, obviously. But our job 3 is to maximize the value of our clients' 4 claims. 5 THE COURT: And on the other side of 6 the coin is Mr. Edwards taking the position 7 that the impetus -- or an impetus for filing 8 the complaint at bar was the exposure of 9 Mr. Epstein -- once again, to the ignominy 10 of having to face the publicity of a 11 non-prosecutorial agreement where there were 12 admissions, where there were agreements -- 13 perhaps not admissions -- but agreements 14 that limited the prosecution of him as it 15 relates to multiple claimants or multiple 16 potential victims. 17 So again, my ruling on that is if there 18 are questions that have to do with this 19 issue, globally they will be allowed to be 20 asked subject to further argument as it 21 relates to the multiplicity of the numerous 22 victims that we are dealing with here as 23 alleged. 24 Same as it goes with this 234-page 25 federal complaint. If there were any DRAFT ONLY !!!! NOT PROOFREAD EFTA00792928 119 1 questions that were asked of Mr. Epstein 2 where he refused to answer on Fifth 3 Amendment grounds, I find that the 4 information would be relevant. Therefore, 5 his failure to answer would be -- would be 6 able to be utilized if such questions were 7 asked of him regarding the 234-page federal 8 complaint filed on behalf of L.M. by 9 Mr. Edwards. 10 MR. SCAROLA: Let me just clarify one 11 point, and that is we have been focusing on 12 questions that have already been asked of 13 Mr. Epstein. Obviously, we have the right 14 to call Mr. Epstein as an adverse witness. 15 We have the right to put him in that witness 16 chair in front of the jury, and to ask him 17 questions that Your Honor has considered to 18 be appropriate that may not have been asked 19 at the time of his deposition. 20 So I want to make it clear that we 21 don't consider, nor do I understand Your 22 Honor to be ruling that we would only be 23 limited to asking questions already asked of 24 him in his deposition. We would permitted 25 to ask him any question, relevant and DRAFT ONLY !!!! NOT PROOFREAD EFTA00792929 120 1 material to the claims that he has made 2 against Mr. Edwards. And that as has been 3 announced, we know he will be invoking his 4 Fifth Amendment right. 5 THE COURT: With the caveat and 6 understanding that any reasonably sensitive 7 type of question that is going to be 8 construed as graphic -- reasonably construed 9 as graphic, going to be questions about 10 global conduct, should be run by the court 11 first by way of a proffer. 12 MR. SCAROLA: I understand the Court's 13 concern. And I -- 14 THE COURT: I am very, very cognizant 15 of the fact that we are going to spending a 16 significant amount of time both pretrial and 17 at trial. And I do not want to get into a 18 circumstance where we are going to be taking 19 liberties at the expense of ensuring that a 20 fair trial is provided to all. 21 MR. SCAROLA: I am happy to make the 22 commitment to the Court, because I 23 understand your concern, and I recognize the 24 sensitivity of these issues. 25 THE COURT: Thank you. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792930 121 1 MR. SCAROLA: I will make a commitment 2 to the Court that we will proffer in advance 3 any question that we reasonably anticipate 4 will invoke a Fifth Amendment privilege. 5 THE COURT: All right. Let's move on 6 then. Again, let's refocus back to some of 7 these issues that are directly before the 8 Court. 9 MR. LINK: Your Honor, can I just 10 clarify, because I don't want that to leave 11 untouched and it's this. May I, Your Honor? 12 THE COURT: Briefly. 13 MR. LINK: Thank you. Very briefly. 14 I want to be clear that we have not 15 heard the questions, so I can tell you, 16 without knowing what the question is, 17 whether we will raise the Fifth Amendment or 18 not. My commitment to the Court was the 19 questions that were asked already were not 20 going to change the assertion of the Fifth. 21 THE COURT: I think that was a caveat 22 to Mr. Scarola's recitation. 23 MR. LINK: Thank you, Your Honor. 24 THE COURT: Again, it is with the same 25 caveat that I explained earlier, and that DRAFT ONLY !!!! NOT PROOFREAD EFTA00792931 122 1 is, I am going to have both sides provide me 2 with questions that -- well, really it would 3 start with Mr. Edwards and Mr. Scarola 4 providing your side with questions -- the 5 specific questions that were asked that 6 Mr. Scarola in good faith believes he will 7 be asking at trial that have already been 8 subject to invocation of the Fifth Amendment 9 and/or attorney-client privilege or any 10 other privilege, for that matter. 11 All I've see are Fifth Amendment ad 12 attorney-client privilege. There may have 13 been a Fourteenth amendment or another 14 amendment. 15 MR. SCAROLA: Those questions will be 16 elicited through Mr. Epstein's deposition, 17 Your Honor. 18 THE COURT: So what I'm trying to, 19 again, give you global guidance as to how 20 the Court intends to rule on some of these 21 issues, but at the same time reserving the 22 ability to be able to review the specific 23 questions that with the Court's global 24 guidance today are still subject to debate 25 as to whether or not they are going to be DRAFT ONLY !!!! NOT PROOFREAD EFTA00792932 123 1 asked. 2 For example, Mr. Scarola may have a 3 list of 30 questions that after he has 4 culled through the testimony he intends to 5 ask -- strike that. He intends to publish 6 before the jury by way of deposition 7 utilization. 8 If you find that any or all of those 9 questions are outside the parameters the 10 court has provided to you today, then it 11 will be incumbent upon you to bring those 12 before me and to -- 13 MR. LINK: Judge, I understand. That's 14 a fair procedure. 15 THE COURT: -- and I will entertain 16 further argument or I may not entertain 17 further argument. I may just rule on it 18 pursuant to the law that I have and what I 19 perceive to be the appropriate rules of 20 evidence. 21 MR. LINK: Understood. That procedure 22 is very clear to me. 23 THE COURT: So let's go back now -- I 24 want to give Mr. Scarola his opportunity -- 25 is there anything else specifically that we DRAFT ONLY !!!! NOT PROOFREAD EFTA00792933 124 1 need to talk about now on Fifth Amendment 2 issue? Because most of these other exhibit 3 matters we can handle those -- we can handle 4 them today, if you'd like to. But we don't 5 need to handle them in conjunction with the 6 Fifth Amendment issue. 7 Things like massage tables and messages 8 from notepads in Epstein's homes, flight 9 logs, things of that nature, don't really 10 get into necessarily Fifth Amendment issues. 11 MR. LINK: We agree. 12 THE COURT: So why don't you go ahead, 13 Mr. Link. I want to give you an opportunity 14 to rebut. 15 MR. SCAROLA: Your Honor asked if there 16 were other specific matters relating 17 directly to Fifth Amendment. And the 18 financial discovery raises Fifth Amendment 19 issues that need to be discussed. 20 THE COURT: Okay. We can do that after 21 we get finish with Mr. Link's rebuttal on 22 the global Fifth Amendment issues that we've 23 dealt with thus far. Thank you. 24 MR. LINK: Okay, I'm going to pick up a 25 couple pieces of -- Your Honor, I just want DRAFT ONLY !!!! NOT PROOFREAD EFTA00792934 125 1 to touch on a couple pieces of the 2 presentation, then I will go back to where I 3 want to go. 4 You asked about this timeline. And it 5 doesn't say that it had anything to do with 6 setting aside the NPA. This timeline says 7 this. Jane Doe moved to unseal the NPA. 8 And the reason that that caught 9 Mr. Epstein's attention was because 10 Mr. Edwards and Jane Doe already had it. 11 They had a copy of the NPA, so why would 12 they want it to be unsealed. 13 THE COURT: For the same reasons that 14 we discussed earlier -- Mr. Scarola was 15 rather blunt about it -- and that is that 16 doing that will enhance the value of the 17 claims made by the three pseudonym 18 plaintiffs. 19 MR. LINK: Maybe. 20 THE COURT: It may be. And I grant you 21 that. But it also could inflame 22 Mr. Epstein, potentially, as well. It also 23 could provide Mr. Epstein with bona fide 24 good faith motivation that he thought that 25 this was resolved and now it's being opened DRAFT ONLY !!!! NOT PROOFREAD EFTA00792935 126 1 up again, so I can see both sides. 2 MR. LINK: No question. That's what 3 takes us to the Fifth Amendment and what 4 we're talking about. And that that's this. 5 Everything that was just discussed has to do 6 with the truth -- with the truth of the 7 allegations that are contained in Epstein's 8 complaint against Mr. Edwards. 9 What Mr. Scarola wants to do and what 10 Mr. Edwards told us in his deposition, is 11 they want to show the world that those 12 allegations were untrue. 13 THE COURT: Which allegations? 14 MR. LINK: The allegations Mr. Epstein 15 filed against Rothstein and Edwards. 16 THE COURT: That the allegation as it 17 relates to the claims by the three 18 pseudonyms plaintiffs? 19 MR. LINK: No, sir. 20 THE COURT: Start again. I am not 21 following you. 22 MR. LINK: So there was a lawsuit filed 23 by Mr. Epstein. He sued Rothstein and he 24 sues Edwards. 25 THE COURT: And L.M. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792936 127 1 MR. LINK: And L.M. In that claim, if 2 you read it fairly, you will not find an 3 allegation that says that the three 4 plaintiffs Mr. Edwards represented 5 fabricated their claim. What you will find, 6 Your Honor, when you read it, is that it 7 says that those three cases were used to 8 entice investors to invest in other cases. 9 They also say in this complaint very 10 clearly, that those three cases -- those 11 three cases, the value of them -- the 12 value -- not the legitimacy of filing 13 them -- the value. 14 THE COURT: That's not what it says. 15 Paragraph H, which I will read for a third 16 time says, quote, Rothstein and the 17 litigation team -- which I'm assuming that 18 included Mr. Edwards -- knew or should have 19 known that their three filed cases were weak 20 and had minimal value for the following 21 reasons. 22 MR. LINK: Yes. I agree with that. 23 And I think any questions about that -- 24 right -- any questions about that would go 25 to whether that statement is true. But it DRAFT ONLY !!!! NOT PROOFREAD EFTA00792937 128 1 doesn't say -- it says they were weak. It 2 doesn't say that they were ginned up. It 3 doesn't say they were fabricated. It 4 doesn't say any of the words that 5 Mr. Scarola told you it said. It said that 6 they should have known -- remember what I 7 said, it follows the $500 million paragraph. 8 If you relate it to the $500 million, they 9 should have known that these cases weren't 10 worth $500 million. 11 But it doesn't not say anywhere in this 12 complaint that Mr. Edwards fabricated those 13 three cases in 2008. It doesn't say that 14 anywhere. It doesn't say it anywhere. 15 I absolutely agree -- I absolutely 16 agree it says they were used by Rothstein to 17 attract investors. Rothstein lied about 18 those cases. 19 Mr. Edwards candidly told us in his 20 deposition that Rothstein used his cases -- 21 Mr. Edwards' cases -- and fabricated claims 22 about them in settlements. 23 THE COURT: And the point is what? 24 MR. LINK: The point is this. What 25 Mr. Scarola wants to try to the jury is this DRAFT ONLY !!!! NOT PROOFREAD EFTA00792938 129 1 case right here. He wants the jury to hear 2 the case that settled, these three folks to 3 get on the stand and say that they were 4 physically abused when they were minors. 5 And if that is true -- that's what he tells 6 us -- plaintiff Edwards starts -- my proving 7 the truth of the claims he brought on behalf 8 of them. 9 If he does that, if he proves their 10 underlying claim, he now has lack of 11 probable cause. It's a disconnect. Because 12 lack of probable cause has to do with 13 Edwards' (sic) state of mind at the time. 14 THE COURT: Edwards or Epstein? 15 MR. LINK: Epstein. We have all done 16 it four times. 17 Epstein. Epstein's state of mind, and 18 only his state of mind. I am competent if 19 this case was tried -- this is the Epstein 20 versus Rothstein and Edwards -- that 21 Mr. Edwards will get on the stand, and he 22 would tell the jury all the reasons why he 23 did what he did. And they may believe him. 24 But whether he had a legitimate reason or 25 not, isn't relevant to whether Epstein had DRAFT ONLY !!!! NOT PROOFREAD EFTA00792939 130 1 probable cause. 2 THE COURT: Let's focus on the Fifth 3 Amendment issues. 4 MR. LINK: Well, that's why it's 5 important, because if you asked Mr. Epstein 6 a question -- if you asked him a question 7 that goes something like this, Did you touch 8 E.W.? And sanitize it. Don't put anything 9 graphic. Did you touch E.W.? what does that 10 question -- it would be relevant here. He 11 asserts the Fifth, relevant to this case 12 (indicating), Judge. He asserts the Fifth, 13 how is that relevant to the reasons in his 14 head about why he decided to sue Rothstein 15 and Edwards? How can it be relevant to 16 that? 17 THE COURT: If you asking me, as 18 opposed to being rhetorical, I can answer it 19 simply. 20 MR. LINK: Both. 21 THE COURT: This is pre-settlement, the 22 filing of this lawsuit at bar, okay? 23 MR. LINK: Yes. 24 THE COURT: His strike, if you will, is 25 a preemptive one on virtue filing of this DRAFT ONLY !!!! NOT PROOFREAD EFTA00792940 131 1 lawsuit. 2 MR. LINK: That could be his motive. I 3 agree. 4 THE COURT: That's a simple answer. 5 MR. LINK: Well, but that goes to 6 motive not probable cause. Remember, the 7 motive ties into the malice element. 8 THE COURT: I understand. But the 9 plaintiff in the malicious prosecution 10 claim, Mr. Edwards, has the ability, through 11 direct and circumstantial evidence, to be 12 able to put on a case as to what was 13 Mr. Epstein's reason. Why did he do it? To 14 contradict Mr. Epstein's contentions. 15 And, in my respectful view, one of 16 those motives -- if you're asking me -- 17 which you have -- and you suggested that you 18 have -- 19 MR. LINK: I have. Go ahead. I need 20 teaching all the time. 21 THE COURT: It's not teaching. It just 22 a common sense logical thought that the 23 reason why you bring a lawsuit like this 24 that constitutes somewhere in the 25 neighborhood of 35 pages where you are DRAFT ONLY !!!! NOT PROOFREAD EFTA00792941 132 1 claiming after this -- shortly after this 2 law firm blew up -- 3 MR. LINK: Correct. 4 THE COURT: -- and everybody is 5 scrambling. Nobody knows what's going on. 6 Federal agents are raiding the offices, 7 including, I presume, Mr. Edwards' office. 8 MR. LINK: Yes. They took the Epstein 9 case boxes. 10 THE COURT: This is filed in 2009. The 11 number 40,800 -- give you an idea of how 12 many foreclosure cases we had back then. 13 But the bottom line is it's -- I don't know 14 if it's on this timeline -- the lawsuit is 15 noted as to when it was filed. 16 MR. LINK: 12/7/09. 17 THE COURT: 12/7/09. Rothstein is 18 arrested on 12/1/09. A week later (sic). 19 MR. LINK: A week before. 20 THE COURT: A week before. Exactly. 21 Excuse me. A week before. Razorback 22 complaint is filed 11/20/09. Things are, 23 what I would, again, perceive, if you are 24 asking me -- 25 MR. LINK: I am. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792942 133 1 THE COURT: -- to be at the zenith of 2 stress and tension. 3 MR. LINK: I agree. 4 THE COURT: Here is something that is 5 filed that, at least arguably could be 6 suggested, was trying to get to Mr. Edwards 7 at his weakest moment. 8 MR. LINK: How about if for purposes of 9 today I agree with you that was the motive. 10 I am going to agree with you. Let's say, 11 Your Honor, you are exactly right. For 12 purposes of today that was the motive. What 13 does that have to do -- this is the whole 14 Fifth Amendment -- what does that have to do 15 with this (indicating). 16 THE COURT: With probable cause. 17 MR. LINK: Probable cause. Because 18 here is what probably cause -- 19 THE COURT: Did he have probable cause 20 to file this lawsuit when he did? 21 MR. LINK: When he had the most evil of 22 intent. 23 THE COURT: You said it, not me. 24 MR. LINK: Only for purposes of today. 25 THE COURT: You asked me what my DRAFT ONLY !!!! NOT PROOFREAD EFTA00792943 134 1 perception could be -- 2 MR. LINK: Yes, sir. 3 THE COURT: -- and what this jury's 4 perception, more importantly, could be. 5 Because again, any answers that are given my 6 this Court are what I perceive based upon 35 7 years of doing this work, as a trial lawyer 8 and a trial judge, and seeing hundreds of 9 jurors and how they would go about their 10 work. 11 MR. LINK: You're older than I am. I 12 didn't think that was possible. 13 THE COURT: So that's where I think my 14 frame of reference is. 15 NR. LINK: And I appreciate it. And I 16 appreciate it. And I'm agreeing with you, 17 when you look at the element with what you 18 just described could potentially be evidence 19 of malice. According to the jury 20 instruction and the case law is it cannot be 21 evidence of probable cause. 22 Here is one of the disconnect. I heard 23 Mr. Scarola tell you the two statements he 24 wants to focus on. What he is telling you 25 in a subtle way is that he wants to have a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792944 135 1 defamation case. Publication of two 2 statements, falsity. And then he said to 3 you, then the burden shifts, which it does 4 in a defamation case. He used the 5 defamation words: truth with good motive. 6 This is not a defamation case. 7 It doesn't matter. It doesn't matter 8 if they have all the evidence in the world 9 that they would have won, they would have 10 had a land-slide victory, if the Epstein 11 versus Rothstein and Edwards case was tried. 12 It doesn't make any difference, because the 13 focus has to be in December 2009 was there 14 enough information. 15 I'm not saying, Judge, if you were the 16 lawyer if you would have brought it, or 17 whether I would have brought it, but it was 18 brought. And question is, was there enough 19 information available that a reasonable 20 person would -- could have reasonably 21 brought this claim when they did. 22 The timing can be suspect. The motive 23 can be suspect. The malice can be suspect. 24 But if there's enough information and 25 logical inferences, then you don't have a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792945 136 1 failure of probable cause. 2 And the reason that's important under 3 Fifth Amendment is if these three plaintiffs 4 come in and testify, then essentially what 5 we have -- we are trying the very original 6 case that was filed in 2008, because I have 7 to then cross-examine them on all of their 8 claims and their damages and their health 9 condition, and whether they had done 10 prostitution before, and all of the other 11 things that would have been tried in that 12 case. 13 So then if we open the door to 40 other 14 people, we are going to have 43 sexual 15 molestation cases. 16 THE COURT: I'm not suggesting we are 17 doing that. Again, this is not the work of 18 Mr. Scarola. This is not the work of 19 Mr. Edwards. This is not the work of you or 20 Ms. Rockenbach. This is the work of 21 Mr. Epstein -- 22 MR. LINK: I agree it is. 23 THE COURT: -- making these allegations 24 in subparagraph H, 1 through 3 -- some weird 25 tiny numbers. H, 1 through 3. He's, with DRAFT ONLY !!!! NOT PROOFREAD EFTA00792946 137 1 all due respect, stuck with these 2 allegations. He's stuck with this lawsuit. 3 He's stuck with the claims are contained 4 therein and the allegations that are 5 contained therein. 6 MR. LINK: Absolutely. I agree 7 100 percent. But what are we stuck with? 8 That's the question. Are we stuck trying 9 this case, Judge? Or are we stuck trying to 10 prove to a jury that based on the 11 information that existed, that we had 12 reasonable basis to bring a civil 13 proceeding? 14 Because that's what it talks about. It 15 doesn't say what claim did you bring? What 16 count did you bring? What statements did 17 you bring? It is a civil proceeding. 18 THE COURT: Right now, though, Mr. 19 Link, we're concentrating on the Fifth 20 Amendment issues. There is not a motion in 21 limine in front of me at this juncture as to 22 the 40 other -- or the 40 in total alleged 23 victims. There is not a motion in front of 24 me regarding how far we are going to go with 25 regard to the trial -- DRAFT ONLY !!!! NOT PROOFREAD EFTA00792947 138 1 MR. LINK: Fair enough Judge. 2 THE COURT: In regard to the claims of 3 the three litigants represented by 4 Mr. Edwards. 5 MR. LINK: Your Honor is 100 percent 6 right. I appreciate you indulging me to 7 answer some of the questions that's were on 8 my mind. And I am appreciate that. 9 Where we would like to go next, Your 10 Honor, if the Court has time -- or we can 11 take it up next time -- are those things 12 that were on the exhibit list and witness 13 list. 14 One of the things we don't know, based 15 on the rulings so far, is will E.W., L.M. 16 and Jane Doe be taking the stand, because 17 that's part of the motion in limine what we 18 have been talking about. 19 THE COURT: Are they listed as 20 witnesses? 21 MR. LINK: Pardon me? 22 THE COURT: Have they been deposed? 23 MR. LINK: They have not been deposed 24 in this case. 25 THE COURT: I presume they are listed DRAFT ONLY !!!! NOT PROOFREAD EFTA00792948 139 1 as witnesses. 2 MR. LINK: They are listed as 3 witnesses. 4 MR. SCAROLA: Your Honor, I'm sorry -- 5 MR. LINK: Were they deposed in this 6 case? 7 MR. SCAROLA: One of them was deposed. 8 MR. LINK: I'm sorry. 9 MR. SCAROLA: One of them was deposed 10 in this case just recently. 11 MR. LINK: I thought that was -- oh, 12 yes. You're right. Sorry about that. One 13 out of two. 14 MR. SCAROLA: And the only one noticed 15 to be deposed. 16 MR. LINK: And that's an issue that you 17 told us to come back to you on, Judge. 18 Because if they are going to called -- I 19 don't know if they are -- but if they are 20 going to be called, then I would like the 21 opportunity to depose those two. 22 THE COURT: What I said somewhat off 23 the cuff, but not as articulate as the 24 Second District Court of Appeal in the case 25 of Liabos versus Harman -- L-I-A-B-O-S. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792949 140 1 Harman, H-A-R-M-A-N 215 So.2d 487 was 2 what I intended earlier, just so that we are 3 all clear on the issue of probable cause, at 4 least as it relates in this case in my 5 relatively quick word search. 6 It says, "It should be first noted that 7 the lack of probable cause is a mix question 8 of law and fact -- I will omit the 9 citation -- that is to say when the facts 10 relied on to proving lack of probable cause 11 are in dispute, their existence is to 12 determined by the jury as a question of 13 fact. Their legal effect, on the other 14 hand, is determined -- to be determined by 15 the Court, but only after these facts are 16 admitted to found -- are admitted or found 17 to be true. 18 MR. LINK: Yes. That's right. We are 19 in complete agreement, which is, if the 20 facts we say we relied on in bringing this 21 claim -- if there's a dispute about one of 22 those facts and whether we rely on it, then 23 we would have a jury trial, and the jury 24 would determine whether we relied or not. 25 The Court would then take the 10 pieces of DRAFT ONLY !!!! NOT PROOFREAD EFTA00792950 141 1 information that was relied on and decide if 2 that was enough. 3 You may agree it is, you may agree it 4 is not, Judge. It's going to be your call. 5 THE COURT: Let's go back to the Fifth 6 Amendment issues and deal with those now. 7 You have gotten my global rulings on 8 the issues. I am going to review the 9 individual questions that are intended to be 10 reasked or to be published by the 11 counter-plaintiff Edwards at trial as it 12 relates to Mr. Epstein's invocation of the 13 Fifth Amendment and the related privileges 14 that he is claiming. I don't want to be 15 hamstrung by this record as only dealing 16 with Fifth Amendment. Anything that's in 17 his deposition that has been objected to on 18 privilege grounds. 19 MR. LINK: Thank you, Your Honor. We 20 appreciate it. 21 THE COURT: Thanks. 22 What I would like to then get into next 23 are some of these exhibits. If we can deal 24 with those now, let's go ahead and do that. 25 We will use the next hour or to take care of DRAFT ONLY !!!! NOT PROOFREAD EFTA00792951 142 1 those please. 2 MS. ROCKENBACH: May I approach the 3 bench, Your Honor? 4 THE COURT: Sure. 5 MS. ROCKENBACH: I have a copy of 6 Mr. Edwards' amended exhibit list. And 7 those items that are highlighted -- some of 8 which Your Honor has already mentioned -- 9 this would be related to paragraph B -- or 10 item B in the revised omnibus motion in 11 limine on page 22. Mr. Epstein has raised 12 both and asserted both relevance, 90.401 and 13 the gatekeeper function of the Court, 14 probative value, prejudicial effect of 15 90.403. 16 Some of the examples that Your Honor 17 had mentioned, I think, was a massage table, 18 which was number 59. But if we start at the 19 front, there is an order confirmation from 20 Amazon for the purchase of a book entitled 21 "Slave Craft: Workbook for Erotic Slaves and 22 their Owners." Completely irrelevant, 23 prejudicial, has zero probative value 24 whatsoever to do with the malicious 25 prosecution action. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792952 143 1 The same is true -- and I have 2 highlighted all of these -- they are really 3 grouped, Your Honor. Some of them are just 4 so outrageous when you read them, such as 5 the erotic book, sex offender registrations, 6 massage table, school records and year books 7 of Jane Doe and -- unidentified year books 8 just of Royal Palm Beach. Flight logs, 9 evidence of contributions to Palm Beach 10 Gardens Police Department. 11 And there are some articles, which 12 leads me very quickly -- and I think we can 13 probably -- I hate to jump, but I think, 14 based on Your Honor's ruling, it's possible 15 that Mr. Scarola will agree to item C in the 16 motion in limine, which relates to 17 derogative adjectives when referencing my 18 client. 19 Based on the rulings that you have made 20 this morning, I believe that Mr. Scarola 21 probably would agree not to refer to 22 Mr. Epstein as convicted child molester, 23 billionaire pedophile or the like. 24 THE COURT: Well, billionaire 25 pedophile, I agree is subject to argument. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792953 144 1 But convicted child molester, Mr. Scarola. 2 MR. SCAROLA: That is an accurate 3 description of Mr. Epstein. It is a 4 description, which I believe appears in some 5 of the newspaper articles that Mr. Epstein 6 alleges he relied upon to form a reasonable 7 belief that Bradley Edwards was a 8 participant in these -- in this Ponzi 9 scheme. 10 THE COURT: Did he take a plea of 11 guilty? 12 MR. SCAROLA: Yes. He entered a plea 13 of guilty to two felonies. He is a 14 registered sex offender here in -- 15 THE COURT: I just want to make sure it 16 was a guilty plea, as opposed to a nolo 17 or -- 18 MR. SCAROLA: No. It was a guilty 19 plea, Your Honor. 20 Under the non-prosecution agreement 21 with the federal government, he was required 22 to plead guilty to two state court felonies. 23 THE COURT: Mr. Goldberger, did you 24 want to comment on that? 25 MR. GOLDBERGER: Thank you, Your Honor. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792954 145 1 Just for a point of clarification, neither 2 of the counts that Mr. Epstein pled guilty 3 to are, quote, those that suggest that he's 4 a child molester. It was procuring an 5 underaged for prostitution. That's the 6 count. 7 So the suggestion by counsel for the 8 counter-plaintiff that he is somehow a child 9 molester, there's just no basis in the 10 guilty plea that he entered. 11 Now, he is a registered sex offender 12 subject to a 403 analysis. Perhaps counsel 13 will be able to go there. But there's no 14 evidence to support, based on the documents 15 and on the guilty plea that he's a child 16 molester. He simply didn't plea guilty to 17 anything factually related to that. 18 THE COURT: Tell me exactly what he 19 pled guilty to. 20 MR. GOLDBERGER: Let me get the 21 document, if I can -- 22 THE COURT: Sure. 23 MR. GOLDBERGER: -- Your Honor, so 24 there's no mistake. Solicitation for 25 prostitution, procuring someone under the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792955 146 1 age of 18 for prostitution. 2 MR. SCAROLA: Three someones, which 3 made it a felony, correct? 4 MR. GOLDBERGER: Yeah. Solicitation of 5 prosecution requires three individuals 6 before it goes from a misdemeanor to a 7 felony. 8 THE COURT: Even if it's under the age 9 -- alleged victim is under the age of 18? 10 MR. GOLDBERGER: That's the other count 11 that he pled guilty to. Solicitation of 12 prostitution of someone under the age of 18. 13 The solicitation for prostitution, in 14 order to make that a felony it requires 15 three separate incidents. 16 But none of those success factually in 17 any way the facts that he was a child 18 molester. That's the point that I think my 19 co-counsel is trying to make. 20 THE COURT: Convicted child molester is 21 the term that was used. 22 MR. GOLDBERGER: And that's simply not 23 factually correct. 24 THE COURT: Anything else, Mr. Scarola? 25 MR. SCAROLA: Since we are dealing with DRAFT ONLY !!!! NOT PROOFREAD EFTA00792956 147 1 this in the context of Fifth Amendment 2 assertions -- 3 THE COURT: No, we are dealing with 4 this as a matter of a portion of the omnibus 5 motion in limine. 6 MR. SCAROLA: Then I don't have any 7 further comment. 8 THE COURT: The objection is sustained. 9 The motion is granted. 10 As I understand it in reviewing the 11 case law recently, the guilty plea would be 12 admissible. The registration of sex 13 offender, I am going to need some additional 14 briefing on. 15 MS. ROCKENBACH: And believe me, I've 16 done that, Your Honor. I'm not sure we can 17 take it up today. But Mr. Edwards asked 18 this Court to take judicial notice of it and 19 we have supplied a response. 20 THE COURT: I can only go through so 21 much material within the time -- 22 MS. ROCKENBACH: I know. 23 I think we only addressed part C of the 24 motion in limine. I hoped it would be 25 quick, that's why I brought it up. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792957 148 1 THE COURT: Off the record. 2 (A discussion was held off the record.) 3 MR. SCAROLA: Getting back to the 4 ruling Your Honor just made, I certainly 5 have no intention of referring to Jeffrey 6 Epstein as a convicted child molester when 7 his convictions did not expressly relate to 8 child molestation. It was solicitation of 9 prostitution, multiple solicitations for 10 prostitution. I will be sure that I 11 accurately refer to those things when I make 12 reference to them. 13 THE COURT: Of a minor? 14 MR. SCAROLA: Of minors. 15 THE COURT: My understanding of the 16 case law it's clear that the plea is 17 admissible. 18 MS. ROCKENBACH: Your Honor, maybe we 19 should take that up. And I guess we are 20 going to skip exhibits for a minute, because 21 this is too important to just gloss over. 22 THE COURT: I don't know if it has been 23 briefed, at least in the briefs that -- 24 MS. ROCKENBACH: Probably not the way 25 we would like, but we don't want to paper DRAFT ONLY !!!! NOT PROOFREAD EFTA00792958 149 1 the court. 2 Pages 26 and 27 deal with the 3 derogatory adjectives. That is somewhat 4 along those lines. But where I think 5 Mr. Scarola is going is 90.610 of the 6 Florida Evidence Code, which indicates that 7 when Mr. Epstein is on the stand he can be 8 asked, Have you ever been convicted of a 9 felony? The answer, Yes. But the identity 10 of that felony is not admissible, and that 11 is part of the evidence code. 12 So I'm not sure -- Your Honor is 13 correct, this has not been fully briefed, 14 because all that I anticipated were these 15 two very inflammatory terms. 16 THE COURT: The distinction, though, 17 Ms. Rockenbach, that I would respectfully 18 make -- and I'm not going to suggest that 19 I'm an authority on this particular area -- 20 is that typically that question is asked for 21 one of credibility. Meaning, have you ever 22 convicted of a felony or a misdemeanor 23 involving moral turpitude. 24 MS. ROCKENBACH: Correct. 25 THE COURT: If the answer is yes, the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792959 150 1 next question is how many times. If there 2 is any falsity to any of those -- either of 3 those responses, then the requesting party 4 has the opportunity to provide the Court, 5 and potentially the jury, with 6 counter-evidence typically in the form of 7 certified copies of convictions. 8 MS. ROCKENBACH: That's correct. 9 THE COURT: Now, that's a lot different 10 than in this case, where we are not 11 necessarily talking about merely 12 credibility. What we're talking about what 13 in essence -- if not the heart, certainly 14 near the center of the entire case. 15 In other words, but for the fact 16 that -- at least, but for one of the facts 17 that Mr. Epstein was convicted, the context 18 of a malicious prosecution claim and the 19 context of the contentions that would be 20 made by Mr. Edwards relating to the 21 malicious prosecution claim would be that 22 his conviction and his legal peril were part 23 of his reasons for bringing the case against 24 Mr. Edwards. 25 So this is not merely an issue of DRAFT ONLY !!!! NOT PROOFREAD EFTA00792960 151 1 testing credibility of any given witness. 2 As I understand it, just about any witness 3 can be asked those questions. This is more 4 of an issue of a fact central to the 5 presentation of the case. 6 MS. ROCKENBACH: Your Honor, 7 Mr. Epstein's guilty plea was June 30th, 8 2008. His lawsuit against Mr. Edwards was 9 December 7th, 2009. So the guilty plea was 10 entered at least a year and a half before he 11 sued Mr. Edwards. 12 And my concern with this under the 13 impeachment part of the Florida Evidence 14 Code 610.5 -- I am going to quote from 15 Ehrhardt, 2016 version, "When a witness who 16 testifies as a criminal defendant there is a 17 danger" -- we are not even a criminal 18 defendant. We are not even trying the 19 criminal case -- "but there's danger that 20 the jury will consider the convictions, 21 which are admitted only to impeach as 22 evidence the defendant is a bad person. The 23 concern is greater when there are number of 24 prior convictions." There's on one. 25 But the point is, this is bad character DRAFT ONLY !!!! NOT PROOFREAD EFTA00792961 152 1 evidence under 90.404. It's improper 2 impeachment under 90.610. And we absolutely 3 oppose and object to the guilty plea coming 4 into evidence. It has no relevance to the 5 issue of why my client filed a malicious 6 prosecution action a year and a half after 7 he pled guilty. 8 THE COURT: Mr. Scarola. 9 MR. SCAROLA: Ms. Rockenbach is 10 incorrect that we would seek to admit this 11 evidence solely under 90.610. Because under 12 that provision of the evidence code, we 13 would be restricted to, Have you ever been 14 convicted of a crime? How many times? I 15 understand that entirely. And that's 16 strictly a matter of credibility. 17 However, the issue that we have the 18 burden of proving is an issue of probable 19 cause. And that involves, as we have 20 explained in great detail, an analysis of 21 what Mr. Epstein knew. Part of what 22 Mr. Epstein knew when he sued Bradley 23 Edwards is that he was guilty of multiple 24 crimes involving sexual activity with 25 minors. That's part of what he knew. He DRAFT ONLY !!!! NOT PROOFREAD EFTA00792962 153 1 pled guilty to that. 2 Now, he was asked in deposition, Who 3 are the minors that you pled guilty to? 4 Objection. Fifth Amendment. I refuse to 5 answer on the ground that it may tend to 6 incriminate me. He refused to identify 7 those people. 8 Well, we can draw an adverse inference 9 from that. And the adverse inference we can 10 draw is that the three people were L.M., 11 E.W. and Jane Doe. 12 Now, he can get up and try to rebut 13 that adverse inference through something 14 other than his own testimony, because 15 through his own testimony he has foreclosed 16 any further evidence coming from him. But 17 if there's some independent source where he 18 can suggest to the jury that this is not a 19 proper inference to draw. He wasn't 20 pleading guilty to crimes committed against 21 these three young women -- these three 22 children at the time -- then he can do that. 23 But it is relevant and material to the issue 24 of probable cause because he admitted sexual 25 offenses relating to children and refuses to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792963 154 1 identify in the context of this case who 2 those children are. 3 So this isn't just propensity. This 4 isn't bad character. This is evidence that 5 is directly material to an element of this 6 case that we are obliged to prove. 7 So your Honor's reaction was absolutely 8 correct. There are other reasons why this 9 comes in in the context of this case. 10 Thank you, sir. 11 MS. ROCKENBACH: Your Honor, may I 12 reply? 13 THE COURT: Sure. 14 MS. ROCKENBACH: In Mr. Epstein's 15 deposition March 17th, 2010 on page 103, 16 Mr. Scarola asked him, line 23, "Who is the 17 minor that you procured for prostitution? 18 And the answer is, "I do not know." 19 Let's get back to the probable cause 20 issue. 21 MR. SCAROLA: I'm sorry. I do stand 22 corrected. I am remembering now that that 23 was his response. It wasn't the Fifth 24 Amendment assertion. It changes none of the 25 arguments I've just made. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792964 155 1 THE COURT: I understand. 2 MS. ROCKENBACH: Your Honor, the issue 3 of whether my client pled guilty to 4 prostitution with one minor or not is not 5 relevant to what facts and circumstances. 6 And that's the phrase of all the cases 7 reported. What facts and circumstances were 8 known to Mr. Epstein when he filed his 9 malicious prosecution. And the Wright 10 versus Yorco (phonetic) case. We haven't 11 talking about it, but -- 12 THE COURT: I'm familiar with it. 13 MS. ROCKENBACH: I'm sure, Your Honor. 14 -- both sides cited it. And it talks 15 about what constitutes that probable cause. 16 The public record. The public record. So 17 my client can rely on two parts. Rely on 18 firsthand knowledge or trustworthy 19 information provided to him. That's the 20 Razorback lawsuit. That's Mr. Bill Scherer, 21 the Fort Lauderdale attorney being quoted by 22 the newspaper as saying that Epstein -- 23 Rothstein didn't act alone. It's the head 24 of the South Florida FBI saying this was not 25 a one-man show. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792965 156 1 The issue of my client's plea of 2 guilty, has nothing to do with his probable 3 cause of whether he believed Mr. Edwards was 4 in connection with Mr. Rothstein in puffing 5 up the claims. 6 THE COURT: One thing I appreciate the 7 appellate courts doing recently is writing, 8 somewhat extensively, on the fluidity of 9 motions in limine, and the fact that until 10 the Court can digest at trial all of the 11 facts that are being presented in putting 12 these things into context, it makes it 13 somewhat difficult, and recognizes the trial 14 court's difficulty in dealing with some of 15 these motions and some of these issues 16 without context. 17 But, in my respectful view, the flaw of 18 the argument from its inception -- again, 19 I'm not trying to be disrespectful -- but 20 the flaw in the argument is what I perceive 21 to be a lack of recognition of, not only 22 Mr. Epstein's rationale for filing his suit, 23 but the focus, or lack thereof, on 24 Mr. Edwards' responsibility and burden a 25 strict one, and a strong one according to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792966 157 1 onerous -- used by one of the cases in being 2 able to prove probable cause here. 3 And Mr. Scarola has used in his 4 briefing this building blocks approach. And 5 I think the same type of analogy or picture 6 can be utilized here when speaking about the 7 motive. What was the probable cause in 8 actuality from the counter-plaintiff 9 Edwards' standpoint for Epstein doing what 10 he did. 11 As I indicated before, but didn't use 12 the analogy, what you and Mr. Link provided 13 to the Court provides, not only building 14 blocks for potentially Mr. Epstein's 15 probable cause, but likewise provides 16 building blocks for Mr. Edwards' proving 17 that he did not have probable cause. 18 And as far as the Court is concerned, 19 if the guilty plea came after he filed suit, 20 then there might be some reasonable argument 21 to separate it out and say, Judge, he hadn't 22 even filed suit -- the suit was filed 23 -- strike that. 24 He hadn't pled guilty. The guilty plea 25 came three years after he filed this suit DRAFT ONLY !!!! NOT PROOFREAD EFTA00792967 158 1 for malicious prosecution, then it would 2 probably be a relevancy argument that may or 3 may not win the day. 4 But when looking at it from a building 5 block type of analysis, as I have in the 6 most simplest terms, in looking at it from 7 both sides, which I am incumbent to do, as 8 Mr. Scarola alluded to, this is but one item 9 that could be argued to have fueled 10 Mr. Epstein to have filed this lawsuit, thus 11 making it relevant. 12 Now, the fluidity issue that I spoke 13 about is, I'm willing to look at it, again, 14 if there's a case on point that specifically 15 says otherwise. But for purposes of this 16 particular matter, the Court would find 17 absent the production of a case that would 18 say otherwise, that Mr. Epstein's guilty 19 pleas -- I understand it's combined, so I'm 20 not suggesting there were more than one 21 combined plea -- would be relevant, that it 22 would be relevant to the issue of probable 23 cause, and it would be relevant, 24 potentially, to the issue of malice. 25 And that, again -- with the Court DRAFT ONLY !!!! NOT PROOFREAD EFTA00792968 159 1 looking at it from both sides, and analyzing 2 it from both sides, it could be used by 3 Mr. Epstein. It could be used by 4 Mr. Edwards. But it provides, at least, 5 some relevancy, defined again as proving or 6 tending to prove or disprove a material 7 fact. The material fact is the element of 8 probable cause and perhaps malice. 9 So again, I am going to rule that they 10 would be admissible. 11 Next issue, please. 12 But again, we are going to completely 13 and entirely stay away from any type of 14 pejorative comment. I understand that 15 sometimes things are said in the heat of 16 deposition that would never be repeated at 17 trial. Again, I'm certainly ordering that 18 that not take place. 19 All right. We want to go back to some 20 of these -- in the time that we have left, 21 let's go back to some of these exhibits and 22 see if we can work through them. 23 MS. ROCKENBACH: Thank you, Your Honor. 24 We had identified and have highlighted, 25 starting with number three, photographs and DRAFT ONLY !!!! NOT PROOFREAD EFTA00792969 160 1 information of Mr. Epstein's homes, planes 2 automobiles. I'm not sure what relevance 3 that would have as to why he filed a 4 malicious prosecution action. 5 THE COURT: Let's take them one at a 6 time. 7 Mr. Scarola, what's your position? 8 MR. SCAROLA: His homes and his 9 automobiles are evidence with respect to his 10 pecuniary circumstances. Obviously a 11 relevant matter when we are talking about a 12 punitive damage claim. 13 THE COURT: Typically, though, net 14 worth is what is considered, not 15 necessarily -- unless it's impeachment, 16 i.e., you'll have a picture of a home that 17 he owns in the US Virgin Islands -- I think 18 that he has some connection with one of 19 those islands -- and I'm not trying to 20 suggest anything as far as anything 21 inappropriate -- but I can conceive of this 22 situation that if Mr. Epstein testifies that 23 his net worth is X comprised of A, B and C 24 in large part, but you find an asset that he 25 has not taken into account that's worth DRAFT ONLY !!!! NOT PROOFREAD EFTA00792970 161 1 twice as much of his claimed net worth -- 2 MR. SCAROLA: I know he has a minimum 3 net worth of -- 4 I don't mean to interrupt, Your Honor, 5 but Mr. Epstein refuses to provide any 6 evidence with regard to his net worth, so we 7 are obliged to offer circumstantial evidence 8 of his net worth, unless and until those 9 objections based on Fifth Amendment grounds 10 are overruled on the basis that they are 11 non-testimonial. 12 THE COURT: I think that's a subject 13 for another motion. 14 MS. ROCKENBACH: It is, Your Honor. 15 MR. SCAROLA: It is. But Your Honor 16 should not be deciding this issue on the 17 basis of the premise that we are going to 18 get evidence from Mr. Epstein as to what 19 Mr. Epstein's net worth is. 20 THE COURT: Agreed. 21 MR. SCAROLA: All he has told us is 22 he's willing to stipulate to a net worth in 23 excess of $100 million. Well, it makes a 24 difference as to whether it's 100 million, 25 200 million or a thousand million, that is a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792971 162 1 billion dollars, or $2 billion. 2 So even if we're left with a Fifth 3 Amendment assertion, we are back to the same 4 issue that was raised by the defense, and 5 that is, there needs to be some evidence 6 independent of the Fifth Amendment assertion 7 that would allow the inference to be -- 8 THE COURT: I'm going to cut you off. 9 I'm going to defer on number three. 10 Number four is the Amazon receipt for 11 the "SM 101: A Realistic Introduction, 12 Slave Craft: Roadmap for Erotic 13 Servitude-Principles, Skills and Tools" and 14 Training Miss Abernathy. A Workbook for 15 Erotic Slaves and their Owners." 16 MR. SCAROLA: I never read it. 17 Your Honor, if I might -- 18 MS. ROCKENBACH: It has no relevance, 19 Your Honor. Prejudicial. Should not be 20 discussed, referenced, admitted. I think 21 it's also a receipt from Amazon for the 22 book, by the way. It's an order 23 confirmation. If my memory serves correct, 24 it's a receipt for the purchase of a book. 25 It has nothing to do with malicious DRAFT ONLY !!!! NOT PROOFREAD EFTA00792972 163 1 prosecution. 2 THE COURT: Mr. Scarola. 3 MR. SCAROLA: In fact, it does. I 4 might explain to Your Honor that many of 5 items that on this list that are being 6 challenged, a vast majority of them, were 7 part of an appendix to the motion for 8 summary judgment that was not defended 9 against by Mr. Epstein. 10 THE COURT: Let me ask you this. Was 11 this particular exhibit located prior to the 12 suit being filed by Mr. Epstein? 13 MR. SCAROLA: Yes, sir. 14 MS. ROCKENBACH: It's the receipt 15 located by whom? 16 THE COURT: By anybody. For the 17 purposes of this case. 18 MR. SCAROLA: These are items -- 19 THE COURT: In other words, was it 20 discovered in a lawsuit that was filed prior 21 to Mr. Epstein filing this suit? 22 MR. SCAROLA: No, sir. It was 23 discovered when a search warrant was 24 executed by law enforcement shortly after 25 the criminal allegations were made against DRAFT ONLY !!!! NOT PROOFREAD EFTA00792973 164 1 Mr. Epstein before any of the civil lawsuits 2 were filed. 3 So law enforcement gets probable cause 4 to execute a search warrant on Mr. Epstein's 5 home. And one of the things that is 6 found -- or many of the things that are 7 described here, are found during the course 8 of the execution of that search warrant and 9 formed probable cause for the criminal 10 charges against Mr. Epstein. 11 Even more significantly, they formed 12 the basis for the civil lawsuits that were 13 filed on behalf of L.M., E.W. and Jane Doe. 14 That is, this is all evidence taken 15 into account in substantiating the validity 16 of the claims of these three particular 17 victims of Mr. Epstein. 18 And all of these things are delineated 19 in the motion for summary judgment that 20 Mr. Epstein does not defend against and 21 voluntarily dismisses his case on the eve of 22 the hearing. 23 Your Honor is well aware of 24 procedurally he would have been obliged well 25 in advance of the hearing to file his DRAFT ONLY !!!! NOT PROOFREAD EFTA00792974 165 1 opposition to the motion for summary 2 judgment. He doesn't do that. 3 Why is that significant in the context 4 of this case? Because, as we have heard 5 from the defense, they are going to 6 challenge whether there is a bona fide 7 termination of the claim against Mr. Edwards 8 in favor of Mr. Edwards. Was the abuse of 9 process claim terminated under such 10 circumstances as to indicate a bona fide 11 termination? 12 How do we make that decision? Well, 13 the only way to make that decision is to 14 talk about the motion for summary judgment, 15 what supported the motion for summary 16 judgment, and the fact that the motion for 17 summary judgment was not opposed, a 18 voluntary dismissal was taken, and the 19 statute of limitations permitted to expire 20 without ever refiling those claims. 21 So as long as bona fide termination 22 remains an issue, the motion for summary 23 judgment is clearly relevant and material. 24 And this is all part of the motion for 25 summary judgment. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792975 166 1 Many of these things, in addition to 2 that, forms the basis for the explanation of 3 Mr. Edwards' conduct when he was a member of 4 RRA, and demonstrate that he wasn't abusing 5 process in any respect at all while he was 6 prosecuting these claims. He was pursuing 7 very relevant and material avenues of 8 discovery reasonably calculated to lead to 9 admissible evidence. 10 So that's my full response to this. 11 THE COURT: The objection is sustained 12 on two grounds: on relevancy and also 403 13 analysis. 14 I will entertain the introduction 15 outside the presence of the jury, if it 16 becomes necessary. 17 The other concern I have is that at 18 best it appears to sound like it may be 19 impeachment on a collateral matter. 20 Collateral to the summary judgment -- the 21 summary judgment motion that was made and 22 then not challenged. For those reasons, I'm 23 going to sustain the objection at this time. 24 Again, subject to context for being able to 25 readdress it, if necessary. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792976 167 1 MR. SCAROLA: Number four is sustain? 2 THE COURT: Yes, sir, for the reasons 3 stated in the record. 4 MR. SCAROLA: Understood. 5 THE COURT: The NPA, I have already 6 indicated that the inclination would be -- 7 if properly predicated -- would be allowed. 8 The Jane Doe, one of two complaints -- I 9 don't see any -- what would be the grounds 10 for objecting to that? 11 MS. ROCKENBACH: I'm not sure what the 12 relevance is. I'm not the proponent of the 13 evidence, but I don't see what relevance 14 there would be of Jane Doe's complaint. 15 The relevance in this malicious 16 prosecution action might be the allegations 17 of this complaint, this action. But when we 18 start bringing in other complaints as 19 exhibits for a jury to read, I think that go 20 far afield from -- 21 THE COURT: This is the same Jane Doe 22 or a different Jane Doe? 23 MR. SCAROLA: Same Jane Doe. 24 THE COURT: Overruled. 25 Next issue. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792977 168 1 MR. SCAROLA: Excuse me, Your Honor. 2 There are two Jane Does. This is Jane Doe 3 102. 4 Jane Doe 102 was a Bob Josefsberg 5 client. 6 And just so I orient Your Honor with 7 regard to this matter. Under the terms of 8 the non-prosecution agreement, the federal 9 court appointed Bob Josefsberg as counsel on 10 behalf of all unrepresented victims to 11 protect the interest of unrepresented 12 victims turn the terms of the 13 non-prosecution agreement. 14 One of those multiple victims being 15 represented by Mr. Josefsberg was an 16 individual identified as Jane Doe 102. She 17 has since been publicly as 18 19 And the specific allegations in this 20 complaint include the transport of Jane Doe 21 Number 2 on Mr. Epstein's private jets to 22 various homes owned by Mr. Epstein in 23 various locations inside and outside the 24 United States. 25 THE COURT: She's expect to be a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792978 169 1 witness? 2 MR. SCAROLA: Yes, sir. 3 THE COURT: Live witness? 4 MR. SCAROLA: Live. 5 THE COURT: At this point I'm going to 6 find that, if, in fact, she is a witness, 7 that it would be cumulative, and hence I am 8 going to sustain the objection on those 9 grounds. 10 MR. SCAROLA: May I just finish my 11 argument as to why this complaint was of 12 significance? Because she does -- she does 13 allege in the complaint that she was 14 molested onboard the airplane, and that she 15 was prostituted out to third parties onboard 16 the airplane, which provided the basis for 17 Mr. Edwards seeking airplane logs and the 18 testimony of pilots and the testimony of 19 others identified in the flight logs as 20 being present on the plane. 21 THE COURT: That's fine. I don't have 22 a problem with Mr. Edwards testifying. If 23 it becomes an issue in terms of credibility 24 or whatever it might be, then I will take 25 another look on it. But on the basis of the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792979 170 1 arguments that I have heard, the objection 2 is sustained for the reasons that I 3 provided. 4 MR. SCAROLA: Understood. Thank you, 5 sir. 6 MS. ROCRENBACH: Your Honor, before we 7 leave, based on Your Honor's ruling, I would 8 make an ore tenus motion for leave to depose 9 , because now it has become 10 clear that she is going to be testifying, 11 based on Mr. Scarola's statement and Your 12 Honor's ruling. 13 THE COURT: Wasn't she scheduled to 14 come to court from Australia? Wasn't that 15 the lady? 16 MR. SCAROLA: That's where she's 17 living. She was scheduled to come to court. 18 She was available to be deposed previously. 19 They chose not to take her deposition. She 20 has been listed as a witness for years in 21 this matter. 22 THE COURT: I have to do a written 23 motion, but I want to be consistent with 24 what I said recently, and that is that it's 25 not -- the continuance is not -- and I DRAFT ONLY !!!! NOT PROOFREAD EFTA00792980 171 1 emphasize, not designed to be a wholesale 2 reopening of discover, that the Court would 3 take that up on an issue-by-issue basis. 4 But, without pre-deciding anything, 5 unless it can be demonstrated to the Court 6 that there was unavailability, that there 7 was a late filing, that there was some type 8 of inability of a witness to testify, 9 something along those lines. 10 These witnesses have been listed for a 11 lengthy period of time. Again, this was not 12 the purpose of the motion that was filed and 13 it was not the import of the order of the 14 Court. 15 Let's talk about number seven. 16 MS. ROCKENBACH: Messages taken from 17 message pads found at Mr. Epstein's home. 18 THE COURT: What do the messages say? 19 MR. SCAROLA: They relate to arranging 20 sexual massages with minors. I can't tell 21 you from memory -- but Mr. Edwards may be 22 able to -- whether there are specific 23 references to our three clients. 24 THE COURT: Not to be overly technical 25 or hypertechnical here, is Mr. Edwards DRAFT ONLY !!!! NOT PROOFREAD EFTA00792981 172 1 serving as co-counsel? 2 MR. SCAROLA: Yes, Your Honor. I think 3 I've told Your Honor before, we don't 4 anticipate him taking an active role in the 5 trial, but he remains as co-counsel of 6 record in this case. 7 THE COURT: Fair enough. 8 Mr. Edwards, would you like to comment 9 on that? 10 MR. EDWARDS: Sure, Your Honor. The 11 message pads include the names of many of 12 the underaged females that visited and set 13 up appointments at Mr. Epstein's home, 14 including L.M., E.W. and Jane Doe. 15 THE COURT: Have they been 16 authenticated by Mr. Epstein? Or did he 17 take the Fifth on that? 18 MR. EDWARDS: He has taken the Fifth on 19 questions related to that. They have been 20 authenticated in other depositions by 21 Detective Vicari, although those were taken 22 in other cases. But he's an available 23 witness who could testify as to the chain of 24 custody: Where he found the message -- 25 where he found the messages and how he DRAFT ONLY !!!! NOT PROOFREAD EFTA00792982 173 1 gathered them during the search warrant. 2 THE COURT: The relevancy, Mr. Scarola? 3 MR. SCAROLA: They clearly relate to 4 the validity of the claims on behalf of 5 these three victims of Mr. Epstein. They 6 corroborate that these young women were 7 there at his home on many occasions, and 8 along with a large number of other underaged 9 females who were being routinely molested by 10 Mr. Epstein. 11 MS. ROCKENBACH: Your Honor, may I 12 relay? This is inflammatory. These message 13 pads may be relevant had Mr. Edwards not 14 settled the three lawsuits in which he 15 represented those three women. But they are 16 not relevant in the malicious prosecution 17 case whether my client had probable cause to 18 file this action or not, or malice. 19 We are definitely getting far afield in 20 terms of the exhibits. And it looks like -- 21 and I understand why Mr. Edwards would want 22 to try exhibits that were relevant to his 23 clients' action because the exhibits that 24 should be relevant in the malicious 25 prosecution case are the facts and DRAFT ONLY !!!! NOT PROOFREAD EFTA00792983 174 1 circumstance, or the lack of facts and 2 circumstances on which my client relied in 3 filing this lawsuit -- the civil action -- 4 the civil proceeding. 5 Message pads regarding these 6 appointments are absolutely 90.403 7 prejudicial and not -- which prejudicial 8 affect clearly outweigh any remote probative 9 value in this action. 10 MR. SCAROLA: It seems to me that we 11 are going, unfortunately, around the same 12 mulberry bush. The validity of the claims 13 is an issue. 14 In addition to that, the viability of 15 the claims against Mr. Epstein from a 16 criminal perspective is part of why he was 17 so concerned about this non-prosecution 18 agreement being set aside. 19 He knew that there was a mountain of 20 evidence that would prove that he was a 21 serial child molester, that there were 22 dozens and dozens of victims of his 23 molestations, which were occurring multiple 24 times a day, day after day after day. 25 And the only way he could foresee at DRAFT ONLY !!!! NOT PROOFREAD EFTA00792984 175 1 this point in escaping the criminal exposure 2 that was clearly going to result in 3 convictions, because of this mountain of 4 evidence available, was to scare off the one 5 person who was challenging that 6 non-prosecution agreement through the Crime 7 Victims' Rights Act case. 8 THE COURT: I'm going to defer on 9 ruling on this. But it is not to be 10 mentioned during opening statement. And it 11 is going to be determined by the Court in 12 the context in which I believe it would be 13 necessary. 14 And I'm concerned about first -- as I 15 mentioned earlier on in another exhibits -- 16 that this is collateral. That it would 17 constitute impeachment on a collateral 18 matter. 19 Again, I don't want to get back into 20 serial child molestation. I believe words 21 to that effect were just utilized, so that's 22 the reason for the ruling. 23 I think that right now, based upon what 24 I'm looking at, which is not the actual 25 messages, but just the recitation of an DRAFT ONLY !!!! NOT PROOFREAD EFTA00792985 176 1 exhibit would be that there -- that any 2 probative value would be materially 3 outweighed by the prejudice. 4 MS. ROCKENBACH: Thank you, Your Honor. 5 We are working off of Mr. Edwards' exhibit 6 list. And the next one is eight, documents 7 related to Mr. Epstein produced by Alfredo 8 Rodriguez. 9 THE COURT: Alfredo Rodriguez was the 10 houseperson, if I'm understanding? 11 MS. ROCKENBACH: Yes, Your Honor. 12 THE COURT: I don't know what that 13 means. What specifically are we talking 14 about? 15 MR. SCAROLA: We're talking about a 16 book that contain a list of Jeffrey 17 Epstein's victims, their names and telephone 18 numbers, as well as a number of other 19 contacts that Jeffrey Epstein have, who 20 through other evidence, were established to 21 be regular guests in his home. 22 These provided corroboration of the 23 testimony of L.M., E.W. and Jane Doe. They 24 provided evidence of the extent of 25 Mr. Epstein's molestation of children, which DRAFT ONLY !!!! NOT PROOFREAD EFTA00792986 177 1 obviously supports the magnitude of the 2 wrong in which he was engaged, which goes 3 directly to the punitive value of the claims 4 brought by L.M., E.W. and Jane Doe, that is, 5 a jury faced with the task of making a 6 determination as to the appropriate amount 7 of punitive damages is instructed that they 8 shall take into consideration the magnitude 9 of the wrong, and that includes the total 10 number of victims involved in the offender's 11 wrongdoing. 12 THE COURT: I presume that by the time 13 the case was settled that I or a predecessor 14 judge in that division had found a valid 15 claim for punitive damages in terms of those 16 case that we are dealing with here? 17 MR. SCAROLA: Yes. There were multiple 18 punitive damages claims pending. 19 THE COURT: I would have expected so. 20 I just didn't know the timing. 21 MR. SCAROLA: Yes. 22 MS. ROCKENBACH: Your Honor's question 23 got us directly to the point. This is 24 relevant evidence for punitive damages in 25 Mr. Edwards' clients' cases, not in this DRAFT ONLY !!!! NOT PROOFREAD EFTA00792987 178 1 case. 2 THE COURT: My concerns are, again, 3 that we are going too far afield. And 4 again, my best efforts to try to keep this 5 as a level playing field when it comes to 6 focusing on the claims that are made in this 7 particular case, that being the malicious 8 prosecution case. 9 And while I know and I have already 10 indicated, and I believe Epstein's counsel 11 has conceded that it cannot be sanitized, 12 and will not be sanitized, because it goes 13 to many of the issues that are involved 14 here, and by way of Mr. Edwards' 15 recitations, through Mr. Scarola, the 16 motives that Mr. Epstein may have had to 17 file the action at bar. 18 But at the same time I am going to rule 19 in the same way as I did as to number seven, 20 and, that is, that I find that under 403 21 that the probative value -- any probative 22 value is materially outweighed by the 23 prejudice involved. 24 MR. SCAROLA: May I ask a rhetorical 25 question, Your Honor? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792988 179 1 THE COURT: Sure. 2 MR. SCAROLA: When Mr. Epstein alleges 3 that these cases were ginned up, when he 4 alleges that asking in the complaint for 5 $50 million was totally out of line and 6 supportive of his conclusions that this was 7 a fabricated claim constructed solely for 8 the purposes of supporting -- knowingly 9 supporting a Ponzi scheme -- when he alleges 10 that these cases really had no significant 11 value, how can we not talk about what the 12 punitive damage value of the cases were and 13 why they had enormous punitive damage value 14 when they are claims relating to a vast 15 number of molestations by a billionaire? 16 THE COURT: Because we are dealing with 17 the three cases that Mr. Edwards represented 18 these three individuals. And to allow 19 records, information about anybody else at 20 this juncture would, in my view, be 21 collateral to the allegations made by 22 Epstein in his claim. 23 And there's no contention here that 24 Mr. Edwards, for whatever reason, went on 25 some type of organized witch hunt so as to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792989 180 1 persecute or threaten Mr. Epstein with proof 2 of other cases, proof of other alleged 3 molestations, documents that are at issue or 4 anything of that nature. 5 MR. SCAROLA: That's exactly what was 6 alleged, sir. It was alleged that Bradley 7 Edwards was pursuing discovery with regard 8 to molestations of other children that took 9 place on an airline when none of Brad 10 Edwards' clients were ever molested on the 11 airplane. That he had no reasonable basis 12 for doing that. 13 THE COURT: Now, it seems to me we're 14 engaging in a negative, proving up a 15 negative. 16 MR. SCAROLA: You lost me. 17 THE COURT: You understand what I'm 18 trying to say? 19 MR. SCAROLA: No. 20 THE COURT: None of Mr. Edwards' 21 clients were molested on an airplane, then 22 it seems to me to be conceding my point, and 23 that is, then there's no reason for these 24 other issues to be introduced, because 25 there's nobody that Mr. Edwards represented DRAFT ONLY !!!! NOT PROOFREAD EFTA00792990 181 1 that was molested on an airplane. 2 MR. SCAROLA: That's exactly my point, 3 sir. That's the defense argument. 4 THE COURT: Show me where that's -- 5 MR. SCAROLA: That's the defense 6 argument that this was irrelevant discovery. 7 THE COURT: Show me where that's in the 8 complaint about the other alleged victims. 9 MR. SCAROLA: We'll have that for you 10 in just a moment, Your Honor. 11 THE COURT: Let me take a look at that 12 and see how it may or may not be conjecture. 13 MR. SCAROLA: While we are finding 14 that -- we will have that for you in just a 15 moment -- your Honor may recall that I 16 referenced earlier -- and I have, 17 unfortunately, misplaced the copy of the 18 federal statute. I should have it -- I 19 should have it in just a moment. 20 THE COURT: I mean, I'm looking at 21 paragraphs 17 and 18, for example, where 22 Mr. Epstein alleges, while relative to this 23 action, Epstein is currently named as 24 defendant in three civil actions alleging 25 sexual assault and battery that were handled DRAFT ONLY !!!! NOT PROOFREAD EFTA00792991 182 1 by RRA and his attorneys, including Edwards, 2 prior to its implosion -- presuming he means 3 RRA's and not Mr. Edwards' implosion -- one 4 of which was filed in federal court -- and 5 the two in state court that I have already 6 identified. The civil actions were filed in 7 August and September of 2008. 8 Paragraph 18 then says, quote, what is 9 clear is a fraudulent and improper 10 investment of a Ponzi scheme was, in fact, 11 conducted and operated by RRA and certain of 12 the named defendants, which scheme directly 13 impacted Epstein as a named defendant in 14 these civil actions -- referencing the three 15 at issue. 16 MS. ROCKENBACH: Correct. 17 THE COURT: Where is -- 18 MR. SCAROLA: Paragraphs 35 and 36. 19 THE COURT: Let's take a look at those. 20 Paragraph 35 states, quote, For instance, 21 the litigation team relentlessly and 22 knowingly pursued flight data and passenger 23 manifests regarding flights Epstein took 24 with these famous individuals knowing full 25 well that no underaged women were on board DRAFT ONLY !!!! NOT PROOFREAD EFTA00792992 183 1 and no illicit activities took place. 2 Rothstein and the litigation team also 3 inappropriately attempted to take the 4 depositions of these celebrities in a 5 calculated effort to bolster the marketing 6 scam that was taking place, end quote. 7 Next paragraph? 8 MR. SCAROLA: Next paragraph. 9 THE COURT: Quote, one of the 10 plaintiffs' counsel -- strike that. 11 One of plaintiff's counsel Edwards, 12 deposed three of Epstein's pilots and sought 13 the deposition of a fourth pilot currently 14 serving in Iraq. The pilots were deposed by 15 Edwards for over 12 hours, and Edwards never 16 asked one question relating to or about 17 L.M., E.W. and Jane Doe, RRA's clients, as 18 it related to transportation on flights of 19 RRA clients on any of Epstein's planes. But 20 Edwards asked many inflammatory, leading and 21 irrelevant questions about the pilots' 22 thoughts and beliefs, which will never be 23 admissible at trial, which could only have 24 been asked for the purpose of pumping the 25 cases, and thus by using the deposition to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792993 184 1 sell the cases or a part of them to third 2 parties. End quote. 3 Anything else? 4 MR. SCAROLA: Those are two obvious 5 references in the complaint to conduct on 6 the part of Brad Edwards alleged to have 7 been improper and forming part of the basis 8 for abuse of process claims. 9 THE COURT: The Court's ruling remains 10 the same. 11 MR. SCAROLA: I never like to argue 12 after the Court has already ruled, but there 13 is one additional point that I want to make. 14 THE COURT: Sure. 15 MR. SCAROLA: Your Honor, I have cited 16 in -- we have cited in submissions to the 17 Court, specifically the motion in limine 18 addressing the scope of admissible evidence 19 that we have filed. We have cited the 20 provisions of Florida statute 90.404, 21 subsection two, commonly known as the 22 Williams Rule statute, which talks about 23 evidence of other crimes. 24 We have also cited the federal rule of 25 evidence, Rule 415. And that rule expressly DRAFT ONLY !!!! NOT PROOFREAD EFTA00792994 185 1 permits the introduction in evidence of the 2 molestation of other children in any federal 3 action, criminal or civil, involving the 4 molestation of a child. 5 Congress explained -- and quote, That 6 in the submission to the Court -- the reform 7 effected by these rules is critical to the 8 protection of the public from rapists and 9 child molesters. It's justified by the 10 distinctive characteristics of the cases to 11 which it applies. 12 "In child molestation cases, a history 13 of similar acts tends to be exceptionally 14 probative, because it shows an unusual 15 disposition of a defendant, a sexual or 16 pseudosexual interest in children that 17 simply does not exist in ordinary people. 18 "Moreover, such cases require reliance 19 on child victims, whose credibility can 20 readily be intact in the absence of 21 substantial corroboration. 22 "In such cases, there is a compelling 23 public interest in admitting all significant 24 evidence that will shed some light on the 25 credibility of the change -- excuse me -- of DRAFT ONLY !!!! NOT PROOFREAD EFTA00792995 186 1 the charge and any denial by the defense." 2 So -- 3 THE COURT: And Mr. Scarola, if we were 4 trying a sexual molestation case, there may 5 be a stronger argument. But the very point 6 that I'm making is that we're not trying a 7 sexual molestation case, per. Now, there 8 may be elements and issues that may arise, 9 depending upon the nature of Mr. Epstein's 10 position relative to these matters. 11 However, it does not change the Court's 12 view that these messages taken from a 13 message pad at Epstein's home relate to 14 others and that the documents related to 15 Epstein produced by his houseman, 16 Mr. Rodriguez, that relate to others, 17 remains irrelevant. And any probative 18 value, if found to be relevant, would be 19 materially outweighed by the prejudice. 20 The Court's decision remains the same. 21 I think it's bolstered by the fact that we 22 are not trying the child molestation case. 23 And the significance of the collateral cases 24 is not, in my respectful view, necessarily a 25 touchstone of this particular case and this DRAFT ONLY !!!! NOT PROOFREAD EFTA00792996 187 1 particular analysis. 2 We are going to have to call it a day. 3 I thank you very much, again, for your 4 arguments and your input, written and oral. 5 Thank you, again. 6 Again, thanks to our court reporter and 7 our courtroom personnel also for their hard 8 work and courtesies. 9 Have a good rest of the week. We will 10 see you back, if not before, on 11 December 5th. 12 MR. LINK: Thank you for your time. 13 THE COURT: We will take up the 14 remaining issues of evidence first, and then 15 we will go back to the schedule, which I 16 very much appreciate you all providing. We 17 will adhere to that schedule as we continue 18 on with the motions. 19 We will be in recess. 20 21 22 23 24 25 DRAFT ONLY !!!! NOT PROOFREAD EFTA00792997