EFTA00798167

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JEFFREY EPSTEIN, Petitioner, CASE NO. 4D18-0762 -VS- SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and L.M., E.W., and JANE DOE, Intervenors. Respondents APPENDIX TO RESPONSE TO PETITION FOR WRIT OF MANDAMUS PAGE 1. Non-Prosecution Agreement, dated September 24, 2007 A4-17 2. Notice of Appearance, dated November 1, 2017 A18-20 3. Motion for Continuance, dated November 6, 2017 A21-33 4. Defendant Rothstein's Motion to Set Aside Default, dated A34-36 February17, 2010 Attorneys filing appendix: Philip M. Burlington, Esq. Nichole J. Segal, Esq. BURLINGTON & ROCICENBACH, P.A. 444 West Railroad Avenue, Suite 350 West Palm Beach, FL 33401 1 EFTA00798167 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing was furnished by mail to The Honorable Donald W. Hafele, 205 N. Dixie Highway, Room 10.1216, West Palm Beach, FL 33401 and to all counsel on the attached service list, by email, on March 12, 2018. Jack Scarola, Esq. Karen Terry, Esq. David J. Vitale, Jr. Esq. SEARCY DENNY SCAROLA BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Blvd. West Palm Beach, FL 33409 and BURLINGTON & ROCICENBACH, P.A. Courthouse Commons/Suite 350 444 West Railroad Avenue West Palm Beach, FL 33401 (561) 721-0400 Attorneys for Res ondents By: /s/ Philip M. Burlington PHILIP M. BURLINGTON Florida Bar No. 285862 By: /s/ Nichole J. Segal NICHOLE J. SEGAL Florida Bar No. 41232 /kbt 2 EFTA00798168 SERVICE LIST Epstein v. Rothstein/Edwards Case No. 4D18-0762 Scott J. Link, Esq. Marc S. Nurik, Esq. Kara Berard Rockenbach, Esq. LAW OFFICES OF MARC S. NURIK Rachel J. Glasser, Esq. One E. Broward Boulevard, Ste. 700 LINK & ROCKENBACH, PA Ft. Lauderdale, FL 33301 1555 Palm Beach Lakes Blvd. Ste. 301 West Palm Beach, Florida 33401 Attorneys for Scott Rothstein Bradley J. Edwards, Esq. EDWARDS POTT1NGER LLC 425 N. Andrews Avenue, Ste. 2 Ft. Lauderdale FL 33301-3268 Attorneys for Jeffrey Epstein Attorneys for Bradley J. Edwards Jack A. Goldberger, Esq. KITERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Avenue S., Ste. 1400 West Palm Beach FL 33401 Attorneys for Jeffrey Epstein 3 EFTA00798169 EN RE: INVESTIGATION OF JEFFREY EPSTEIN NON-PROSECUTION AGREEMENT rr APPEARING that the City of Palm Beach Police Department and the State Attorney's Office for the 15th Judicial Circuit in and for Palm Beach County (hereinafter, the "State Attorney's Office") have conducted an investigation into the conduct of Jeffrey Epstein (hereinafter "Epstein"); IT APPEARING that the State Attorney's Office has charged Epstein by indictment with solicitation of prostitution, in violation of Florida Statutes Section 796.07; IT APPEARING that the United States Attorney's Office and the Federal Bureau of Investigation have conducted their own investigation into Epstein's background and any offenses that may have been committed by Epstein against the United States from in or around 2001 through in or around September 2007, including: knowingly and willfully conspiring with others known and unknown to commit an offense against the United States, that is, to use a facility or means of interstate or foreign commerce to knowingly persuade, induce, or entice minor females to engage in prostitution, in violation of Title 18, United States Code, Section 2422(b); all in violation of Title 18, United States Code, Section 371; (2) knowingly and willfully conspiring with others known and unknown to travel in interstate commerce for the purpose of engaging in illicit sexual conduct, as defined in 18 U.S.C. § 2423(f), with minor females, in violation of Title IS, United States Code, Section 2423(b); all in violation of Title 18, United States Code, Section 2423(e); (3) using a facility or means of interstate or foreign commerce to knowingly persuade, induce, or entice minor females to engage in prostitution; in violation of Title 18, United States Code, Sections 2422(b) and 2; (4) traveling in interstate commerce for the purpose of engaging in illicit sexual conduct, as defined in IS U.S.C. § 2423(f), with minor females; in violation Page I of 7 A4 EFTA00798170 of Title 18, United States Code, Section 2423(b); and (5) knowingly, in and affecting interstate and foreign commerce, recruiting, enticing, and obtaining by any means a person, knowing that the person had not attaincd the age of 18 years and would be caused to engage in a commercial sex act as defined in 18 U.S.C. § 1591(c)(1); in violation of Title 18, United States Code, Sections 1591(a)(1) and 2; and IT APPEARING that Epstein seeks to resolve globally his state and federal criminal liability and Epstein understands and acknowledges that, in exchange for the benefits provided by this agreement, he agrees to comply with its terms, including undertaking certain actions with the State Attorney's Office; IT APPEARING, after an investigation of the offenses and Epstein's background by both State and Federal law enforcement agencies, and after due consultation with the State Attorney's Office, that the interests of the United States, the State of Florida, and the Defendant will be served by the following procedure; THEREFORE, on the authority of R. Alexander Acosta, United States Attorney for the Southern District of Florida, prosecution in this District for these offenses shall be deferred in favor of prosecution by the State of Florida, provided that Epstein abides by the following conditions and the requirements of this Agreement set forth below. If the United States Attorney should determine, based on reliable evidence, that, of this during the period of the Agreement, Epstein willfully violated any of the conditions Agreement, then the United States Attorney may, within ninety (90) days following the expiration of the term of home confinemen t discussed below, provide Epstein with timely notice specifying the condition(s) of the Agreement that he has violated, and shall initiate its prosecution on any offense within sixty (60) days' of giving notice of the violation. Any notice provided to Epstein pursuant to this paragraph shall be provided within 60 days of the United States learning of facts which may provide a basis for a determination of a breach of the Agreement. After timely fulfilling all the terms and conditions of the Agreement, no prosecution for the offenses set out on pages 1 and 2 of this Agreement, nor any other offenses that have been the subject of the joint investigation by the Federal Bureau of Investigation and the United States Attorney's Office, nor any offenses that arose from the Federal Grand Jury investigation will be instituted in this District, and the charges against Epstein if any, will be dismissed. Page 2 of 7 A5 EFTA00798171 Terms of the Agreement: 1. Epstein shall plead guilty (not nolo contendere) to the Indictment as currently pending against him in the 15th Judicial Circuit in and for Palm Beach County (Case No. 2006-cf-009495A2OCXMB) charging one (I) count of solicitation of prostitution, in violation of Fl. Stat. § 796.07. In addition, Epstein shall plead guilty to an information filed by the State Attorney's Office charging Epstein with an offense that requires him to register as a sex offender, that is, the solicitation of minors to engage in prostitution, in violation of Florida Statutes Section 796.03; 2. Epstein shall make a binding recommendation that the Court impose a thirty (30) month sentence to be divided as follows: (a) Epstein shall be sentenced to consecutive terms of twelve (12) months and six (6) months in county jail for all charges, without any opportunity for withholding adjudication or sentencing, and without probation or community control in lieu of imprisonment; and (b) Epstein shall be sentenced to a term of twelve (12) months of community control consecutive to his two terms in county jail as described in Term 2(a), supra. 3. This agreement is contingent upon a Judge of the 15th Judicial Circuit accepting and executing the sentence agreed upon between the State Attorney's Office and Epstein, the details of which are set forth in this agreement. 4. The terms contained in paragraphs I and 2, supra, do not foreclose Epstein and the State Attorney's Office from agreeing to recommend any additional charge(s) or any additional term(s) of probation and/or incarceration. 5. Epstein shall waive all challenges to the Information filed by the State Attorney's Office and shall waive the right to appeal his conviction and sentence, except a sentence that exceeds what is set forth in paragraph (2), supra. 6. Epstein shall provide to the U.S. Attorney's Office copies of all Page 3 of 7 A6 EFTA00798172 proposed agreements with the State Attorney's Office prior to entering into those agreements. 7. The United States shall provide Epstcin's attorneys with a list of individuals whom it has identified as victims, as defined in 18 U.S.C. § 2255, after Epstein has signed this agreement and been sentenced. Upon the execution of this agreement, the United States, in consultation with and subject to the good faith approval of Epstein's counsel, shall select an attorney representative for these persons, who shall be paid for by Epstein. Epstein's counsel may contact the identified individuals through that representative. 8. If any of the individuals referred to in paragraph (7), supra, elects to file suit pursuant to 18 U.S.C. § 2255, Epstein will not contest the jurisdiction of the United States District Court for the Southern District of Florida over his person and/or the subject matter, and Epstein waives his right to contest liability and also waives his right to contest damages up to an amount as agreed to between the identified individual and Epstein, so long as the identified individual elects to proceed exclusively under 18 U.S.C. § 2255, and agrees to waive any other claim for damages, whether pursuant to state, federal, or common law. Notwithstanding this waiver, as to those individuals whose names appear on the list provided by the United States, Epstein's signature on this agreement, his waivers and failures to contest liability and such damages in any suit are not to be construed as an admission of any criminal or civil liability. 9. Epstein's signature on this agreement also is not to be construed as an admission of civil or criminal liability or a waiver of any jurisdictional or other defense as to any person whose name does not appear on the list provided by the United States. 10. Except as to those individuals who elect to proceed exclusively under 18 U.S.C. § 2255, as set forth in paragraph (8), supra, neither Epstein's signature on this agreement, nor its terms, nor any resulting waivers or settlements by Epstein arc to be construed as admissions or evidence of civil or criminal liability or a waiver of any jurisdictional or other defense as to any person, whether or not her name appears on the list provided by the United States. 11. Epstein shall use his best efforts to enter his guilty plea and be Page 4 of 7 A7 EFTA00798173 sentenced not later than October 26, 2007. The United States has no objection to Epstein self-reporting to begin serving his sentence not later than January 4, 2008. 12. Epstein agrees that he will not be afforded any benefits with respect to gain time, other than the rights, opportunities, and benefits as any other inmate, including but not limited to, eligibility for gain time credit based on standard rules and regulations that apply in the State of Florida. At the United States' request, Epstein agrees to provide an accounting of the gain time he earned during his period of incarceration. 13. The parties anticipate that this agreement will not be made part of any public record. If the United States receives a Freedom of Information Act request or any compulsory process commanding the disclosure of the agreement, it will provide notice to Epstein before making that disclosure. Epstein understands that the United States Attorney has no authority to require the State Attorney's Office to abide by any terms of this agreement. Epstein understands that it is his obligation to undertake discussions with the State Attorney's Office and to use his best efforts to ensure compliance with these procedures, which compliance will be necessary to satisfy the United States' interest. Epstein also understands that it is his obligation to use his best efforts to convince the Judge of the 15th Judicial Circuit to accept Epstein's binding recommendation regarding the sentence to be imposed, and understands that the failure to do so will be a breach of the agreement. In consideration of Epstein's agreement to plead guilty and to provide compensation in the manner described above, if Epstein successfully fulfills all of the terms and conditions of this agreement, the United States also agrees that it will not institute any criminal charges First anatential co-conspirators of E stein, including but not limited to Lesley Groff, or Further, upon execution o is agreement and a plea agreement with e tate Attorney's Office, the federal Grand Jury investigation will be suspended, and all pending federal Grand Jury subpoenas will be held in abeyance unless and until the defendant violates any term of this agreement. The defendant likewise agrees to withdraw his pending motion to intervene and to quash certain grand jury subpoenas. Both parties agree to maintain their evidence, specifically evidence requested by or directly related to the grand jury subpoenas that have been issued, and including certain computer equipment, inviolate until all of the terms of this agreement have been satisfied. Upon the successful completion of the terms of this agreement, all outstanding grand jury subpoenas shall be deemed withdrawn. Page 5 of 7 A8 EFTA00798174 By signing this agreement, Epstein asserts and certifies that each of these terms is material to this agreement and is supported by independent consideration and that a breach of any one of these conditions allows the United States to elect to terminate the agreement and to investigate and prosecute Epstein and any other individual or entity for any and all federal offenses. By signing this agreement, Epstein asserts and certifies that he is aware of the fact that the Sixth Amendment to the Constitution of the United States provides that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial. Epstein further is aware that Rule 48(b) of the Federal Rules of Criminal Procedure provides that the Court may dismiss an indictment, information, or complaint for unnecessary delay in presenting a charge to the Grand Jury, filing an information, or in bringing a defendant to trial. Epstein hereby requests that the United States Attorney for the Southern District of Florida defer such prosecution. Epstein agrees and consents that any delay from the date of this Agreement to the date of initiation of prosecution, as provided for in the terms expressed herein, shall be deemed to be a necessary delay at his own request, and he hereby waives any defense to such prosecution on the ground that such delay operated to deny him rights under Rule 48(b) of the Federal Rules of Criminal Procedure and the Sixth Amendment to the Constitution of the United States to a speedy trial or to bar the prosecution by reason of the running of the statute of limitations for a period of months equal to the period between the signing of this agreement and the breach of this agreement as to those offenses that were the subject of the grand jury's investigation. Epstein further asserts and certifies that he understands that the Fifth Amendment and Rule 7(a) of the Federal Rules of Criminal Procedure provide that all felonies must be charged in an indictment presented to a grand jury. Epstein hereby agrees and consents that, if a prosecution against him is instituted for any offense that was the subject of the grand jury's investigation, it may be by way of an Information signed and filed by the United States Attorney, and hereby waives his right to be indicted by a grand jury as to any such offense. //I /I/ I/ / Page 6 of 7 A9 EFTA00798175 By signing this agreement, Epstein asserts and certifies that the above has been read and explained to him. Epstein hereby states that he tmderstands the conditions of this Non- Prosecution Agreement and agrees to comply with them. R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: By: A. MARIE VILLAFAIZIA ASSISTANT U.S. ATTORNEY Dated: 6/UT'( Dated: GERALD LEFCOURT, ESQ. COUNSEL TO JEFFREY EPSTEIN Dated: LILLY ANN SANCHEZ, ESQ. ATTORNEY FOR JEFFREY EPSTEIN Page 7 of 7 A10 EFTA00798176 By signing this agreement, Epstein asserts and certifies that the above has been read and explained to him. Epstein hereby states that he understands the conditions of this Non. Prosecution Agreement and agrees to comply with them. R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: By: A. MARIE VILLAFARA ASSISTANT U.S. ATTORNEY Dated: Dated: 7/ 2-'flo7 Dated: LILLY ANN SANCHEZ, ESQ. ATTORNEY FOR JEFFREY EPSTEIN Pago 7 of 7 All EFTA00798177 s that the above has been read By signing this agreement, Epstein mats and certifie that he unders tands the conditions of this Non- and explained to him. Epstein hereby states Prosecution Agreement and agrees to compl y with than. R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: By: A. MARIE VILLAFANA ASSISTANT U.S. ATTORNEY Dated: JEFFREY EPSTEIN Dated: GERALD LEFCOURT, ESQ. COUNSEL TO JEFFREY EPS Dated: ESQ. ATTORNEY FOR JEFFREY EPSTEIN Page 7 of 7 A12 EFTA00798178 IN RE: INVESTIGATION OF JEFFREY EPSTEIN T ADDENDUM TO THE NON-PROSECUTION AGREEMEN ons of page 4, paragraph 7 IT APPEARING that the parties seek to clarify certain provisi after "paragr aph 7"), that agreem ent is modified as of the Non-Prosecution Agreement (herein fol lows: third-party the responsibility 7A. The United States has the right to assign to an independent subjec t to the good faith approv al of Epstein's counsel, selecting for consulting with and, under the Agreement. If the the attorney representative for the individuals identified ndent third-party, both the United States elects to assign this responsibility to an indepe to make good faith objections to the attorney United States and Epstein retain the right indepe ndent third-p arty prior to the final designation of representative suggested by the the attorney represe ntative . the independent third -party 713. The parties will jointly prepare a short written submission to of the attorne y represe ntative and regardi ng Epstein's Agreement to regarding the role custom ary hourly rate for representing pay such attorney representative his or her regular paragra ph C, infra. such victims subject to the provisions of pay the fees of the attorney 7C. Pursuant to additional paragraph 7A, Epstein has agreed to third party. This provision, however, shall not representative selected by the independent costs of contest ed litigati on filed against him. Thus, obligate Epstein to pay the fees and representative elects to file ■ if after consideration of potential settlements, an attorney any other contested contested lawsuit pursuant to 18 U.S.C. s 2255 or elects to pursue pay the costs of the attorney remedy, the paragraph 7 obligation of the Agreement to ry or other obligat ions to pay reasonable representative, as opposed to any statuto of the attorney as those contain ed in s 2255 to bear the costs attorneys fees and costs such representative, shall cease. A13 EFTA00798179 been read and Eps tein ass erts and certifies that the above has By signing this Add end um , s to the Non - tein here by, stat es that he understands the clarification explained to him. Eps agrees to comply with them. Prosecution Agreement and IL ALEXANDER ACOSTA UNDO STATES ATTORNEY By: Dated: A. MARIE VILLAPANA ASSISTANT U.S. ATTORNEY Dated: // 2" f 43— Dated: GERALD LEFCCURT, ESQ. COUNSEL TO JEFFREY EPSTEIN Dated: LILLY ANN SANCHEZ, ESQ. IN ATTORNEY FOR JEFFREY EPSTE EFTA00798180 By signing this Addendum, Epstein asserts and certifies that the above has been read and explained to him. Epstein hereby states that he understands the clarifications to the Non- Prosecution Agreement and agrees to comply with them. R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: By: A. MARIE VILLAFARA ASSISTANT U.S. ATTORNEY Dated: JEFFREY EPSTEIN Dated: / 0/9407 RAW LEFCOCIRTIESQ. COUNSEL TO JEFF Y EPSTEIN Dated: LILLY ANN SANCHEZ, ESQ. ATTORNEY FOR JEFFREY EPSTEIN A15 EFTA00798181 Ey signing this Addendum, Epstein asserts and certifies that the above has been read and explained to him. Epstein hereby stalea that he understands the clarifications to the Non- Prosecution Agreement and agrees to comply with them. R. ALEXANDER ACOSTA UNITED STATES ATTORNEY Dated: BY: A. MARIE VILLAFAAA ASSISTANT U.S. ATTORNEY Dated: JEFFREY EPSTEIN Dated: GERALD LEFCOURT, ESQ. COUNSEL TO JEFFREY EPSTEIN Dated: LILLY ANNSANCHEZ, ESQ: ATTORNEY FOR JEFFREY EPSTEIN A16 EFTA00798182 3051800201 T-066 P 0C3/004 F-976 Da-CT-CT 04:55pet F oe-For I er-ni te Burnett AThrsoation Jeffrey B. Epstein do hereby ro-41Emt the Non-Prosecution Accemerd and Addendum to mint dazed October 30, 2007, A17 EFTA00798183 Filing # 63628489 E-Filed 11/01/2017 04:35:39 PM IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 50-2009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, v. SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiffs. PLAINTIFF/COUNTER-DEFENDANT'S NOTICE OF APPEARANCE OF CO-COUNSEL, E-MAIL DESIGNATIONS AND DIRECTIONS TO THE CLERK TO UPDATE ATTORNEY INFORMATION Plaintiff/Counter-Defendant, Jeffrey Epstein, hereby gives notice of the appearance of his co-counsel at Link & Rockenbach, P.A. Please direct all pleadings, discovery and orders in this matter to the following counsel: Scott J. Link Link & Rockenbach, P.A. 1555 Palm Beach Lakes Boulevard, Suite 301 West Palm Beach. Florida 33401 Telephone: Facsimile: Primary: Secondary: A18 EFTA00798184 CERTIFICATE OF SERVICE I certify that the foregoing document has been furnished to the attorneys listed on the Service List below on November 1, 2017, through the Court's e-filing portal pursuant to Florida Rule of Judicial Administration 2.516(b)(1). LINK & ROCKENBACH, P.A. 1555 Palm Beach Lakes Boulevard, Suite 301 West Palm Beach Florida 33401 [fax] By: Is/ Scott .1 Link Scott J. Link FBN 602991 Primary: Secondary: Co-Counselfor Plaintiff/Counter-Defendant Jeffrey Epstein SERVICE LIST Jack Scarola Nichole J. Segal Searcy, Denny, Scarola, Barnhart & Shipley, P.A. Burlington & Rockenbach, P.A. 2139 Palm Beach Lakes Boulevard Courthouse Commons, Suite 350 West Palm Beach FL 33409 444 West Railroad Avenue West Palm Beach FL 33401 ter-Plaintiff Co-Counselfor Defendant/Counter-Plaintiff Bradley J. Edwards Bradley J. Edwards Bradley J. Edwards Marc S. Nurik Farmer, Jaffee, Weissing, Edwards, Fistos & Law Offices of Marc S. Nurik Lehrman, P.L. One E. Broward Boulevard, Suite 700 425 N. Andrews Avenue, Suite 2 Ft. Lauderdale FL 33301 Fort Lauderdale FL 33401 Counselfor Defendant Scott Rothstein Co-Counselfor Defendant/Counter-Plaintiff Bradley J. Edwards 2 A19 EFTA00798185 Tonja Haddad Coleman Fred Haddad 315 S.E. Seventh Street, Suite 301 Haddad & Navarro, PLLC Ft. Lauderdale, FL 33301 1 Financial Plaza, Suite 2612 Fort Lauderdale FL 33394 Co-Counselfor Plaintiff/Counter-Defendant Co-Counselfor Plaintiff/Counter-Defendant Jeffrey Epstein Jeffrey Epstein W. Chester Brewer, Jr. Jack A. Goldberger W. Chester Brewer, Jr. P.A. Atterbury, Goldberger & Weiss, P.A. 250 Australian Avenue S., Suite 1400 250 Australian Avenue S., Suite 1400 West Palm Beach FL 33401 West Palm Beach FL 3 401 Co-Counselfor Plaintiff/Counter-Defendant Co-Counselfor Plaintiff/Counter-Defendant Jeffrey Epstein Jeffrey Epstein A20 EFTA00798186 Filing # 63798617 E-Filed 11/06/2017 12:03:44 PM IN THE CIRCUIT COURT OF THE 1. 1 EENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 50-2009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, v. SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiff. PLAINTIFF/COUNTER-DEFENDANT'S MOTION FOR CONTINUANCE OF TRIAL AND TO EXTEND PRE-TRIAL DEADLINES OR, IN THE ALTERNATIVES BIFURCATION OF TRIALS Plaintiff/Counter-Defendant Jeffrey Epstein ("Plaintiff") moves under Rule 1.460 of the Florida Rules of Civil Procedure for a brief 90-day continuance of the special set 10-day trial commencing on December 5, 2017, and to extend the pre-trial deadlines. In the alternative, Plaintiff moves under Rule 1.270 of the Florida Rules of Civil Procedure to bifurcate the trial and limit the first stage of the proceedings to: (i) Plaintiff's case and damages against Defendant Scott Rothstein and (ii) the absence of probable cause element of Defendant/Counter-Plaintiff Bradley J. Edwards' ("Defendant") malicious prosecution claim. BACKGROUND Although this case has been pending since December 2009, in May 2014, this Court granted final summary judgment in Plaintiff's favor. Defendant appealed, and the Fourth District I Counsel for Plaintiff has contacted counsel for Defendant, who opposes this Motion. A21 EFTA00798187 Court of Appeal reversed and remanded in November 2015, with the Mandate issuing in December 2015. The matter was sent to the Florida Supreme Court and, in large part, there were no substantive filings in this case until June 2017, after the Supreme Court declined jurisdiction. Defendant noticed this matter for trial shortly before the Supreme Court's decision and, in July 2017, the Court entered its trial order, special setting a ten-day trial less than five months away. INTRODUCTION The trial should focus on a handful of narrow issues: (1) Plaintiff's damages caused by Rothstein's2 criminal conspiracy; (2) whether Defendant can prove that Plaintiff never had probable cause -- both at the inception of filing suit and throughout the proceeding -- to allege Defendant's connection to Rothstein's criminal activities; (3) whether the proceeding against Defendant concluded with a bona fide termination in his favor; (4) whether Defendant can prove that Plaintiff acted with malice; and (5) whether Defendant was damaged. First, Defendant must have changed his mind about the relevancy of printed or published media about him associating his name with Plaintiff's because, despite an "irrelevant" objection to an interrogatory served in September 2017, Defendant, one month later in October 2017, disclosed a damages expert that focuses on just this type of publication damage. This expert disclosure, changing Defendant's position regarding the discovery sought by Plaintiff from "irrelevant" to "highly relevant," requires that Plaintiff have an opportunity to obtain answers to the discovery Defendant refused to answer, take the deposition of Defendant's expert, obtain a rebuttal expert, and review the claim that more than nine million people read Plaintiff's allegations against Defendant in more than 100 news articles. Florida courts do not condone, nor does Plaintiff believe Defendant's counsel intended, trial by ambush. A brief continuance allows for Defendant 2 The Clerk of this Court entered a default against Rothstein on January 21, 2010. 2 A22 EFTA00798188 to amend the discovery answers and Plaintiff to conduct the necessary discovery as to the new damages claim. Second, it has become clear that Defendant has no intention of litigating the five simple issues listed above. Instead, he intends to re-litigate each of his clients' cases (and other alleged victims' cases) against Plaintiff; return to his prosecutor days and try a criminal case, distracting the jury with inflammatory allegations of sexual misconduct that have nothing to do with the elements of his malicious prosecution claim. The Court should not allow mini-trials of matters that have been concluded or are irrelevant within this one. (See generally Plaintiff's Motion in Limine.) If the Court allows Defendant to pursue this trial strategy, then Plaintiff either needs more time to prepare for trial or the trial should be bifurcated in the manner Plaintiff proposes. PLAINTIFF HEARD THIS COURT LOUD AND CLEAR Following the Court's clear and unambiguous advice at the October 3, 2017, hearing to fortify lead counsel in the preparation and defense of his claim, on October 13, 2017, Plaintiff retained new trial counsel, who appeared in the case on November I, 2017. Plaintiff also retained a team of lawyers from the Gunster law firm as trial support. None of the things Plaintiff is asking for in this Motion is based on lack of manpower. Even using all of these resources, there is still not enough time to get everything that is needed done before the December 5, 2017, trial date. Importantly, Plaintiff and his trial counsel will not seek another continuance. We will be ready to try the case in 90 days. ARGUMENT I. PLAINTIFF NEEDS ADDITIONAL TIME TO PREPARE FOR TRIAL DUE TO EVENTS OUTSIDE OF HIS CONTROL. There are several important tasks that must be addressed before trial. First, Plaintiff needs to identify and hire an expert to address the extent to which Plaintiff's allegations damaged 3 A23 EFTA00798189 Defendant's reputation and the testimony of Defendant's newly disclosed expert who will be testifying on this subject. Second, counsel need to interview the attorney who filed the initial Complaint on Plaintiff's behalf and review his files. Third, Defendant claims he may call more than 150 witnesses at trial, but only a handful of those witnesses have been deposed, and Plaintiff's counsel need time to ask the Court to have Defendant identify the witnesses who will actually be called at trial so Plaintiff can determine if their depositions are necessary, and to conduct the depositions. Fourth, Defendant has, to date, not produced crucial evidence subject to Plaintiff's Motion to Compel and Plaintiff's counsel cannot properly prepare for trial until the Court rules. For example, Defendant has only disclosed the anticipated testimony of 21 of the 159 witnesses he identified on his Witness List and provided incomplete contact information (i.e., he only provided physical addresses, not e-mail addresses or telephone numbers). In addition, Defendant has not provided relevant and important information about his damage claim and relevant information about his expert's recently provided report. As will be explained in Plaintiff's Supplemental Motion to Compel, this information and the documentation are necessary to defend against Defendant's Fourth Amended Counterclaim. Finally, substantive motions, which will direct the path the trial will take, need to be resolved by the Court, but the hearing on those motions is currently set only a few days before the trial is to commence. It is difficult for Plaintiff to properly prepare for trial without knowing which case will be tried. Generally, a motion for continuance has three requirements: it must be in writing, it must be signed by the movant, and it must state all of the facts that entitle the movant to a continuance. Fla. R. Civ. P. 1.460. See also Fla. R. Jud. Admin. 2.545(e) ("Continuances should be few, good cause should be required, and all requests should be heard and resolved by a judge."). This motion 4 A24 EFTA00798190 satisfies these requirements and Plaintiff has made this request in good faith. The Court should grant the motion in the interest of justice. a. Experts Throughout the pendency of this litigation, Plaintiff has served multiple discovery requests to determine how Defendant's reputation was damaged and how he suffered monetarily. On October 20, 2017, Defendant served his expert's untimely report' which revealed that Defendant's expert relies on the same type of documents Defendant early claimed were "irrelevant." Because of this new development, Plaintiff needs to obtain the discovery Defendant objected to as irrelevant, retain a rebuttal expert witness and have the expert prepare a report. Specifically, in interrogatories, Plaintiff asked Defendant about his use of Plaintiff's name to promote his practice and the evidence Defendant intended to rely on to prove damage to his reputation. Defendant responded that the requests were "irrelevant": 34. Please describe in detail and identify with specificity every social media outlet, website, blog, printed materials, seminar materials, or any other printed or published media on which you, your law firm, or any association with which you are affiliated has ever advertised, references, or otherwise places the name of Jeffrey Epstein, and include a detailed description and the date(s) of each and every such reference, advertisement, placement, publication, dissemination, or promotion, identify the persons or groups of persons to whom the same was made, and state the locations where made, and state whether or not the materials used in connection with such reference, advertisement, placement, publication, dissemination, or promotion are in your possession or control, or are Pursuant to the Court's July 20, 2017, Order Specially Setting Jury Trial, the parties were required to disclose 60 days prior to trial (i.e., by October 6, 2017) expert witnesses along with (1) the subject matter about which the expert is expected to testify; (2) the substance of the facts and opinions to which the expert is expected to testify; (3) a summary of the grounds for each opinion; (4) a copy of any written report; and (5) the expert's curriculum vitae. Defendant, however, did not provide his expert's report to Plaintiff until October 20, 2017 — two-weeks after the deadline to do so. 5 A25 EFTA00798191 still available on line or in print, and identify the persons or website from whom such materials may be obtained. RESPONSE: Objection: The information sought is not relevant, material or reasonably calculated to lead to the discovery of admissible evidence.... 35. Please describe with particularity any and all evidence, circumstances and events upon which you rely in asserting that your reputation was damaged as alleged in your Counterclaim, including, without limitation, specifically describing how that damage is attributable to Epstein's lawsuit against you. RESPONSE: The allegations of Epstein's maliciously filed Complaint are defamatory per se. Plaintiff's Interrogatories dated September 5, 2017, and Defendant's Responses dated September 25, 2017, Nos. 34 and 35. Just recently, however, Defendant disclosed through his expert that he is relying on this same type of information that he earlier refused to provide: 15. The defaming statements associating Mr. Bradley J. Edwards with the illegal activities of Mr. Scott Rothstein as a result of Mr. Jeffrey Epstein's lawsuit against Mr. Edwards have been disseminated to at least 74 online media or other sites in 104 separate stories or articles with a combined 9,669,542 potential daily visitors since the lawsuit was filed to the date that I filed this report, inclusive. Dr. Bernard J. Jansen, October 20, 2017, Report, 9115. Because of this late disclosure and change in position regarding the relevance of printed or published media connecting Defendant to Plaintiff, Plaintiff now needs the discovery Defendant claimed was irrelevant and also must identify and retain an expert to testify about, among other things, the number of people who may have read articles discussing Plaintiff's allegations tying Defendant to Rothstein's Ponzi scheme, and the impact this may or may not have had on Defendant's reputation. The expert will need time to study and investigate Defendant's responses to the previously objected to discovery (which the Court should order be produced forthwith) and 6 A26 EFTA00798192 Defendant's expert's analysis, perform his own study, draft his own report, and assist Plaintiff's counsel in preparing to take the deposition of Defendant's expert. Plaintiff's expert's deposition will need to be taken as well. All of this cannot be accomplished in a single month. b. Plaintiff's Original Counsel A central focus of this case is what Plaintiff knew at the time the original Complaint was filed and his legitimate basis for bringing this lawsuit. Plaintiff was represented by Robert D. Critton, Jr., at the time the original Complaint was filed. Plaintiff's new trial counsel needs time to review Mr. Critton's files and speak with Mr. Critton to ensure that Plaintiff's case is properly presented to the Court. Unfortunately, Mr. Critton has a heavy case load and has been unable to devote the time necessary to review his files and refresh his recollection before being interviewed. Mr. Critton expects it will be a few weeks before he can devote that time to this matter. Plaintiff's counsel cannot fairly and adequately present Plaintiff's case without speaking with Mr. Critton, and the continuance should be granted. Cf. Ziegler v. Klein, 590 So. 2d 1066, 1067 (Fla. 4th DCA 1991) ("[W]hen undisputed facts reveal that the physical condition of either counsel or client prevents fair and adequate presentation of a case, failure to grant a continuance is reversible error."). c. Witnesses Defendant has identified 159 witnesses on his Sixth Amended Witness List, but only a handful of those witnesses have been deposed. Plaintiff has moved to exclude the testimony of twenty witnesses and one category of witness that Defendant describes as "witnesses expected to be presented." (Omnibus Motion in Limine at 21-22.) In addition, until the Court determines what case will be tried (i.e., Defendant's malicious prosecution claim or Defendant's "victim" cases), it is premature, a practical impossibility, and a financial burden to both parties to take the 7 A27 EFTA00798193 depositions of more than a hundred witnesses. The hearing on these trial issues, however, is not set until November 29, 2017 — just a few days before the trial date. If this Court denies Plaintiff's motion to exclude the witnesses—despite their lack of firsthand knowledge concerning the elements of Defendant's malicious prosecution claim and any affirmative defenses Plaintiff may offer—then the Court should order Defendant to identify the witnesses he actually intends to present at trial and grant a continuance so Plaintiff can take their depositions and determine what, if anything, they know regarding the elements of Defendant's claim. In any event, Plaintiff's counsel will not have sufficient time from the date of the Court's ruling to trial to conduct this substantial deposition discovery. d. Pre-Trial Deadlines If the continuance is granted, Plaintiff also requests that the current trial deadlines be reset based upon the new trial date, including allowing the parties to file amended Exhibit and Witness Lists and to identify experts. II. THE COURT SHOULD BIFURCATE THE TRIAL IN THE INTEREST OF EFFICIENCY AND TO MINIMIZE THE RISK OF PREJUDICE TO PLAINTIFF. Despite these obstacles, Plaintiff could be prepared to proceed to trial as scheduled on December 5, 2017, if the Court bifurcated the proceedings and limited the first stage to: (i) Plaintiff's case and damages arising from Rothstein's conspiracy to commit abuse of process and (ii) whether Plaintiff had probable cause to commence these proceedings against Defendant. This Court, "in furtherance of convenience or to avoid prejudice[,) may order a separate trial of .. . any separate issue." Fla. R. Civ. P. 1.270(b). "[B]ifurcation is generally proper absent a specific threat of inconsistent verdicts or prejudice to a party." Johansen v. Vuocolo, 125 So. 3d 197, 200 (Fla. 4th DCA 2013) (citation and quotation marks omitted). 8 A28 EFTA00798194 Bifurcation on the terms proposed by Plaintiff is appropriate here. There is substantial overlap between (i) the facts that Plaintiff will present to explain Rothstein's Ponzi scheme and the damages he incurred as a result of it and (ii) the facts known to Plaintiff when he commenced these proceedings against Defendant, i.e., the facts this Court will consider when it determines whether Defendant has proved Plaintiff lacked probable cause. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1357 (Fla. 1994) (jury decides disputed issues of fact, but court determines whether those facts establish probable cause) (citation omitted). In all events, the jury will have to determine the dollar amount of Plaintiff's damages caused by Rothstein. And in all events, the jury will have to decide what Plaintiff knew about Rothstein's Ponzi scheme when he commenced these proceedings so the Court can determine whether Plaintiff "had a reasonable belief, based on facts and circumstances known to him, in the validity of his claim." See Wright v. Yurko, 446 So. 2d 1162, 1166 (Fla. 5th DCA 1984) (defining probable cause) (citing Goldstein v. Sabella, 88 So. 2d 910 (Fla. 1956)). Bifurcating the trial and first addressing Plaintiff's case and damages against Rothstein and the related issue of what Plaintiff knew when he commenced these proceedings will expedite the resolution of Defendant's malicious prosecution counterclaim, minimize the parties' expenses, and conserve judicial resources. If the Court holds that Plaintiff had probable cause, Defendant cannot win and the case is over. See Bums v. GCG Beverages, Inc., 502 So. 2d 1217, 1218 (Fla. 1986) (malicious prosecution has six required elements, and the absence of any one of them is fatal) (citation omitted). If that happens, the parties will not have wasted time and money preparing for trial on the other elements of Defendant's counterclaim (expenses that would include the fees associated with deposing Defendant's proposed witnesses, since their testimony would no longer 9 A29 EFTA00798195 be necessary) and the Court, likewise, will not have devoted time and attention to issues that had no effect on the outcome of the case. Finally, bifurcation avoids unnecessary prejudice to Plaintiff. Defendant obviously, under the guise of establishing the proceeding against Defendant was brought with malice, intends to re- litigate every part of his clients' (and other victims') claims against Plaintiff. But this evidence is simply not relevant to the narrow issue of whether Plaintiff reasonably believed—based on public information from the government and investors about Rothstein's Ponzi scheme, allegations and news reports that Rothstein had used Defendant's cases against Plaintiff to trick third parties into investing in non-existent settlements, Defendant's abusive use of discovery, and Defendant's commencement of a 159-count lawsuit in federal court, that was never served, when a duplicative case was already pending in state court—that he had a case against Defendant. If the Court allows Defendant to tar Plaintiff with inflammatory allegations of sexual battery before the jury makes its findings about what Plaintiff knew when he filed suit against Defendant, it is likely that the jurors will ignore relevant evidence and find against Plaintiff just because they despise him. Bifurcation of the trial avoids this unnecessary prejudice to Plaintiff and a pure legal action to receive a fair trial. CONCLUSION Plaintiff moves this Court to grant his motion for a brief 90-day continuance of the parties' trial date and an extension of the pre-trial deadlines. In the alternative, Plaintiff moves this Court to bifurcate the upcoming trial and limit the first stage of the proceedings to (i) Plaintiff's case and damages against Rothstein and (ii) the absence of probable cause element of Defendant's malicious prosecution claim. I0 A30 EFTA00798196 CERTIFICATE OF SERVICE I certify that the foregoing document has been furnished to the attorneys listed on the Service List below on November 6, 2017, through the Court's e-filing portal pursuant to Florida Rule of Judicial Administration 2.516(b)(1). LINK & ROCKENBACH, P.A. 1555 Palm Beach Lakes Boulevard, Suite 301 West Palm Beach, Florida 33401 [fax) By: /s/Scott./. Link Scott J. Link (FBN 602991) Kara Berard Rockenbach (FBN 44903) Angela M. Many (FBN 26680 Primary: Primary: Primary: Secondary: Secondary: Secondary: Secondary: Trial Counselfor Plaintiff/Counter-Defendant Jeffrey Epstein SERVICE LIST Jack Scarola Nichole J. Segal Searcy, Denny, Scarola, Barnhart & Shipley, P.A. Burlington & Rockenbach, P.A. 2139 Palm Beach Lakes Boulevard Courthouse Commons, Suite 350 West Palm Beach. FL 33409 444 West Railroad Avenue West Palm Beach. FL 33401 Co-Counsel for Defendant/Counter-Plaintiff Co-Counsel for Defendant/Counter-Plaintiff Bradley J. Edwards Bradley J. Edwards 11 A31 EFTA00798197 Bradley J. Edwards Marc S. Nurik Fanner, Jaffee, Weissing, Edwards, Fistos & Law Offices of Marc S. Nurik Lehrman, P.L. One E. Broward Boulevard, Suite 700 425 N. Andrews Avenue, Suite 2 Ft. Lauderdale FL 33301 Fort Lauderdale FL 33401 Counsel for Defendant Scott Rothstein Co-Counsel for Defendant/Counter-Plaintiff Bradley J. Edwards Tonja Haddad Coleman Fred Haddad 315 S.E. Seventh Street, Suite 301 Haddad & Navarro, PLLC Ft. Lauderdale FL 33301 1 Financial Plaza, Suite 2612 Fort Lauderdale FL 333.4 Co-Counsel for Plaintiff/Counter-Defendant Co-Counsel for Plaintiff/Counter-Defendant Jeffrey Epstein Jeffrey Epstein W. Chester Brewer, Jr. Jack A. Goldberger W. Chester Brewer, Jr. P.A. Atterbury, Goldberger & Weiss, P.A. 250 Australian Avenue S., Suite 1400 250 Australian Avenue S., Suite 1400 West Palm Beach FL 33401 West Palm Beach FL 33401 Co-Counsel for Plaintiff/Counter-Defendant Co-Counsel for Plaintiff/Counter-Defendant Jeffrey Epstein Jeffrey Epstein 12 A32 EFTA00798198 Je rcy . Epstein Plaintiff/Counter-Defendant Dated: November 6 , 2017 A33 EFTA00798199 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 2009 CA 040800 XXXXMB HONORABLE JUDGE DAVID F. CROW JEFFREY EPSTEIN, Plaintiff, m vs. r m SCOTT RCTHSTEIN, BRADLEY J. EDWARDS, and LM, Defendants. DEFENDANT SCOTT ROTHSTEIN'S MOTI ASIDE DEFAULT Defendant, SCOTT ROTHSTEIN ("R "Defendant"), by and through undersigned counsel and pursuant to Fla. R. hereby moves to set aside the Clerk's Default entered against Defendant, and asserts as follows: 1. On or about Decem 7, 9, Plaintiff filed this lawsuit against Rothstein. 2. Pursuant to th court ket, on or about December 14, 2009, Plaintiff caused the summons and Complai t to be s rved upon Rothstein. 3. D dan Jtas been housed at the Federal Detention Center, Miami, since December efendant has been pulled out of his cell many times by Bureau of Prisons staff since h arceration to receive service of lawsuits at all hours. 5. To the best of Defendant's knowledge and belief, he does not recall being served with this lawsuit. If he was, in fact, properly served with this lawsuit it has been misplaced A34 EFTA00798200 within the pile of numerous lawsuits and voluminous amount of other legal papers and has not been located. 6. In addition, undersigned counsel was not aware that set-vice had been made or attempted upon Defendant. Although Defendant is not able to hand any documents to counsel at the Federa' Detention Center pursuant to Bureau of Prison rules and regulations, had the undersigned had knowledge of this lawsuit, counsel would have contacted Plai co sel to obtain a copy of same as has been done with various other suits currentl 'n against the Defendant. 7. Defendant and undersigned counsel only recen C rned about the lawsuit and immediately checked all Court dockets in the tri-county,,cik> i attempt to locate where the lawsuit was pending and the status thereof. 8. It was only at that time, thro 44‘' -line Clerk Connect docket system that counsel learned that a Motion for Defaul gas on or about December 31, 2009 and a Default was entered on or about January 21 gain, to the best of Defendant's knowledge, he was not served with a copy of the Default and to date, has not seen a copy of the Motion, nor has undersigned counsel. 9. Defe i tit would be extremely prejudiced if the court were to disallow the Defendant s Set Aside Default and respectfully requests this Court set aside any default xcusable neglect. The Defendant has a viable defense to the allegations contained in the Plaintiff's Complaint. WHEREFORE, Defendant, Scott Rothstein, respectfully requests that this Court enter an Order granting Defendant's Motion to Set Aside Default and setting aside the Default. 2 EFTA00798201 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been furnished by U.S. Mail to: Robert D. Critton, Jr., Esq., Burman Critton Luttier & Coleman, 303 Banyan Boulevard, Suite 400, West Falm Beach, FL 33401 , this day of February, 2010. LAW OFFICES OF MARC S. Counsel to Scott Rothstein One East Broward Boule te 700 Fort Lauderdale, FL 3 . NURIK a Bar No. 272817 3 A36 EFTA00798202