EFTA00801142

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 502009CA040800XXXXMB JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, vs. SCOTT ROTHSTEIN, individually; BRADLEY EDWARDS, individually, Defendants/Counter-Plaintiffs. TRANSCRIPT OF PROCEEDINGS DATE TAKEN: Wednesday, August 22nd, 2018 TIME: 10:06 a.m. - 12:04 p.m. PLACE 205 N. Dixie Highway, Room 10D West Palm Beach, Florida BEFORE: Donald Hafele, Presiding Judge This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were reported by: Sonja D. Hall Palm Beach Reporting Service, Inc. 1665 Palm Beach Lakes Boulevard, Suite 1001 West Palm Beach FL 33401 Palm Beach Reporting Service, Inc. EFTA00801142 L 1 2 APPEARANCES: 3 For Plaintiff/Counter-Defendant: 4 LINK & ROCKENBACH, P.A. 1555 Palm Beach Lakes Boulevard, Suite 301 5 West Palm Beach, FL 33401 By KARA BERARD ROCKENBACH, ESQUIRE 6 By SCOTT J. LINK, ESQUIRE 7 For Defendant/Counter-Plaintiff: 8 SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 9 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 10 By JACK SCAROLA, ESQUIRE By DAVID P. VITALE JR., ESQUIRE 11 12 For Jeffrey Epstein: 13 ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Ave. South, Suite 1400 14 West Palm Beach, FL 33401 By JACK A. GOLDBERGER, ESQUIRE 15 16 17 18 19 20 21 22 23 24 25 Palm Beach Reporting Service, Inc. EFTA00801143 1 THE COURT: Good morning. Welcome. We 2 are here -- I hoped that if I waited long 3 enough maybe it would be nothing. 4 MR. LINK: We have an update to what 5 you have. We are trying to force a 6 reduction in paperwork for the judiciary. 7 THE COURT: Thank you. 8 I have the August 20th letter. It's 9 the last letter I received from Mr. Link. 10 I did want to specially recognize the 11 Link and Rockenbach firm -- not that the 12 Searcy Denney firm didn't also do a good 13 job -- but you did a particularly good job 14 in organizing these materials. That really 15 makes a big difference when it comes to 16 preparing. So I thank you for taking that 17 extra time. I know it takes quite a bit of 18 time. 19 MR. SCAROLA: It's amazing what can 20 happen when you have a client who is able to 21 pay hourly fees. 22 MS. ROCKENBACH: Or a really diligent 23 paralegal who we appreciate. 24 THE COURT: I take it more as a matter 25 of respect for the Court in organizing the Palm Beach Reporting Service, Inc. EFTA00801144 4 1 material in such a way that it makes my job 2 a lot easier. 3 So for whatever reason it may have 4 happened, I appreciate the fact that it was 5 done. 6 So a couple of things. Have a seat. 7 Thank you all. When it comes to the 8 deposition excerpts and objections, I am 9 treating this case as I would any other case 10 in that respect, and that is that I don't 11 hear the questions and answers. I don't 12 hear arguments on the questions and answers 13 individually, meaning what I do during my 14 own time is, I will review the deposition 15 transcripts and I will rule accordingly, 16 meaning that I will go through the 17 deposition transcript, just like I would 18 live testimony at trial, and not treat it 19 any differently than we instruct the jury to 20 treat deposition testimony as if the witness 21 appeared at trial and considered as any 22 other evidence during the trial. 23 So accordingly, that will save some 24 time. If I do need argument on any 25 individual questions, similar to what we Palm Beach Reporting Service, Inc. EFTA00801145 5 1 would do in trial, I will call a sidebar. 2 In the setting that I am envisioning that I 3 do in other cases, it would be before the 4 jury comes out or at the close of the day, 5 where I will take the deposition home. I 6 will review the objected-to questions. And 7 as I said, I will announce my rulings, of 8 course, but only entertain argument as I see 9 necessary as, again, I do during and would 10 at the trial. 11 So that wouldn't be necessary to argue 12 during this round of hearings. I will call 13 a hearing and make time for it, if it's 14 necessary. 15 MR. LINK: Good morning. Your Honor, 16 Scott Link on behalf of Mr. Epstein. In 17 preparing for today and thinking about doing 18 the questions and the objections and looking 19 at our objections, frankly, I think they are 20 overdone. And we can save the Court some 21 time by redoing them, frankly, and 22 eliminating some of the objections and 23 streamlining it for the Court. 24 THE COURT: That's fine. If you would 25 like some time to do that, I will be more Palm Beach Reporting Service, Inc. EFTA00801146 1 than happy to allow a 20-day period for you 2 to streamline those, and that will be 3 helpful. Thank you. 4 MR. LINK: You're welcome, Judge. 5 THE COURT: So that's the way we will 6 take care of that aspect of it, so I don't 7 want anybody to worry about dealing with it 8 during this period of time. 9 My thinking is that if we work hard 10 today we can get this done today. I don't 11 think we will need additional time beyond 12 today. 13 Is your bankruptcy hearing still 14 scheduled for tomorrow? 15 MR. SCAROLA: No, Your Honor. The 16 bankruptcy hearing has been taken off as a 17 consequence of various health problems that 18 precluded us from completing the discovery 19 necessary before the bankruptcy hearing can 20 proceed. 21 The bankruptcy hearing is now set in 22 October. 23 THE COURT: Okay. Thanks. 24 Has Mr. Epstein's deposition been 25 taken? Palm Beach Reporting Service, Inc. EFTA00801147 7 1 MR. SCAROLA: No. 2 MR. LINK: It has not. 3 THE COURT: Has that been rescheduled? 4 MR. LINK: It has not. As part of the 5 bankruptcy proceeding, Your Honor, it's been 6 bumped, but I think we are in the process of 7 rescheduling it. 8 MR. SCAROLA: Judge Ray has implemented 9 the procedure that requires the exchange of 10 direct testimony by way of affidavit in 11 advance of the hearing. 12 There's also an exchange of exhibits. 13 And that could not be completed until the 14 depositions are taken. Those depositions 15 were postponed as a consequence of, as I 16 said, various health problems that resulted 17 in us not being able to move forward. 18 THE COURT: Thank you for that 19 information. 20 And as I mentioned, to the extent that 21 my rulings may be impacted by Judge Ray's 22 ultimate rulings, I do want to continue to 23 make that known to the parties, and we will 24 deal with that as necessary. 25 But again, as I said, I want to be Palm Beach Reporting Service, Inc. EFTA00801148 1 clear, I am not deferring to Judge Ray. I 2 am simply going to review whatever findings 3 that he may make pertaining to the issues 4 involving the dissemination and copying of 5 the subject disc involving the emails from 6 the Rothstein law firm, and want his input 7 as to the manner and methods by which that 8 material was, in fact if at all, 9 disseminated. 10 We know that there was some 11 dissemination, since Mr. Link and 12 Ms. Rockenbach have obtained the disc. But 13 where it went from there and in the interim 14 of where it may have been and who may have 15 seen it, would be something that I am 16 interested in. 17 My feeling is that Judge Ray would be 18 adequately handling that aspect since it was 19 his order that is allegedly being 20 challenged. 21 All right. So what do we want to do 22 first? I have here the issue of Edwards' 23 notice of filing deposition transcript 24 excerpts and discovery responses by Epstein 25 implicating the Fifth Amendment. Part of Palm Beach Reporting Service, Inc. EFTA00801149 9 1 that was heard on December 7th, 17, but not 2 completed. 3 Is that what we want to do first? 4 MS. ROCKENBACH: Your Honor, do you 5 mind if I approach? I have an updated 6 schedule for you. So there are two motions, 7 Judge, that we have taken off in the spirit 8 of the other motions that we took off. I 9 believe they are 20 and 21. I crossed them 10 off on there. 11 Item nine we have an agreed order. And 12 with the Court's permission -- it relates to 13 taking judicial notice for authenticity 14 purposes. I will walk that up. 15 MR. VITALE: Mr. Link, was that 20 and 16 22? 17 MR. LINK: I thought so. 18 MR. VITALE: I thought you said 21. 19 MR. LINK: Twenty and 22, Judge. I 20 marked that off on the last page. 21 THE COURT: And you marked off the 22 first one I just mentioned. 23 MR. LINK: I did. This was a different 24 one. 25 THE COURT: I read it, but I didn't Palm Beach Reporting Service, Inc. EFTA00801150 10 1 mention it. 2 MR. LINK: That's the agreed order. 3 And with the Court's permission, we 4 would like to address -- there's two items 5 that involve the Fifth Amendment. 6 Mr. Goldberg will be talking about those. 7 He has volunteered -- I don't know if he 8 volunteered, but he's sitting as the traffic 9 magistrate after lunch today, so if we could 10 take those up first before he rises to a 11 level of semi-importance, that would be 12 helpful. 13 MR. GOLDBERGER: I note the Court 14 laughing. 15 THE COURT: Off the record. 16 (A discussion was held off the record.) 17 THE COURT: Back on the record. Let me 18 orient myself, because the Palm Beach Post 19 didn't bring a photographer today, which I 20 was hoping, which is why I have this box 21 here. 22 You have your cell phone camera? Can 23 you take a picture of the box? 24 She'll indicate that the Judge had 25 boxes of material to review. Palm Beach Reporting Service, Inc. EFTA00801151 11 1 Anyway, nice to see you, Jane. Thank 2 you for being here with us as well. 3 Anyway, yeah, tell me where we are. 4 MR. LINK: Yes, Your Honor. That would 5 be item 11. Edwards's motion to compel 6 request for admission answers; and item 7 three, the first half of it. I think item 8 three will probably take longer than item 9 11. 10 THE COURT: What I have is three, 11 Edwards's notice of Epstein implicating the 12 Fifth Amendment and attorney-client 13 privilege. 14 MR. LINK: That's what we started on 15 and didn't finish. 16 THE COURT: On December 7th? 17 MR. LINK: Yes, Judge. 18 THE COURT: And the second one was item 19 11. 20 MR. LINK: Eleven, yes sir. Edwards's 21 motion to compel. 22 THE COURT: I got it. Great. 23 MR. LINK: Which one would Your Honor 24 like to start with? 25 THE COURT: I have reviewed thoroughly Palm Beach Reporting Service, Inc. EFTA00801152 12 1 item three, so I would rather start with 2 that. If it dovetails together, then I will 3 be better prepared for number 11. 4 MR. SCAROLA: Your Honor, excuse me. 5 May I begin with some brief preliminary 6 comments that I hope may be helpful? 7 THE COURT: Sure. 8 MR. SCAROLA: Thank you, Your Honor. 9 Your Honor, I have prepared an outline 10 of what we, from Mr. Edwards's perspective, 11 perceive to be the issues that need to be 12 addressed. You will note that the first of 13 those issues is, were the allegations filed 14 by Jeffrey Epstein against Brad Edwards 15 false. And clearly an essential element of 16 a malicious prosecution claim is the filing 17 of false allegations. 18 What appears beneath that letters A 19 through Z are direct quotes from the 20 complaint. These are -- 21 MR. LINK: Your Honor, may I interrupt 22 and object for just one moment please? 23 This is obviously an opening 24 statement-type presentation with the press 25 that is here to hear it. And as we talk Palm Beach Reporting Service, Inc. EFTA00801153 13 1 about the motions that we have prepared for, 2 if some of this relevant, the Court can hear 3 it. But the Court is very familiar with 4 this case. And I don't think that behooves 5 us for us both to stand up and make 6 press-like opening statements, Your Honor. 7 THE COURT: Well, I am not suggesting 8 anyone is pandering to the press, but I 9 don't really see the need to go through the 10 elements. I think that they can be 11 integrated with the arguments that you are 12 going to make in response to or in support 13 of the motions that have been made, so I'm 14 going to wait on this. 15 I want to conserve our time as best we 16 can and remind you that, again, this is but 17 one of over 1,500 files that I am handling, 18 which I have myriad amounts of work to do on 19 other cases that, unfortunately -- whether 20 by happenstance, luck or otherwise -- the 21 higher-profile cases seem to gravitate to 22 this division. So I have a lot of work to 23 do. 24 So I would prefer -- Mr. Scarola, while 25 I appreciate your preparation -- and this Palm Beach Reporting Service, Inc. EFTA00801154 14 1 will come in handy, I think, during the 2 respective arguments -- that we handle this 3 in a way that I've chosen, and that is, to 4 deal with the motions that are before me and 5 that are scheduled, and I presume to have 6 been, at least impliedly, agreed to by the 7 parties and by counsel. 8 So I am going to hold off, then, on any 9 type of introductory commentary and ask that 10 you integrate it with the motions that have 11 been brought. 12 MR. SCAROLA: Yes, sir. I would only 13 point out to the Court it was not my 14 intention to read this to Your Honor, nor to 15 make public statements about it. But one of 16 the principal concerns that Your Honor 17 expressed during the lengthy hearing that we 18 began on this motion, but did not finish, is 19 addressing the relevance of the questions 20 that were asked. 21 THE COURT: I'm aware. 22 MR. SCAROLA: And in that spirit, I 23 thought it would be helpful if we identified 24 specifically each of the elements that will 25 be the subject of dispute at the upcoming Palm Beach Reporting Service, Inc. EFTA00801155 15 1 trial. 2 And that's what this does. It simply 3 outlines the issues that will be addressed 4 by the Court and by the jury. And I thought 5 that it would be helpful if we all had this 6 in front of us. If there's some 7 disagreement about it, that that 8 disagreement be addressed so that we are 9 working with a common understanding of what 10 this trial is going to be about. 11 So with that -- and that's the only 12 preface I will make -- I have given it to 13 Your Honor for whatever value it may have. 14 THE COURT: Thank you again. 15 All right, Mr. Goldberger, let's go 16 ahead and start with the issue regarding the 17 Fifth Amendment and the attorney-client 18 privileges. 19 MR. GOLDBERGER: I'm seeking some 20 clarification as to whether Mr. Scarola and 21 his team are objecting to our invocation of 22 the Fifth Amendment on any of these 23 questions that are contained in the motion. 24 That's my role here today, if someone 25 is contesting whether we can invoke the Palm Beach Reporting Service, Inc. EFTA00801156 16 1 Fifth Amendment or not, to explain why we 2 are so doing. 3 I'm not sure -- there are other 4 objections to the deposition questions. Of 5 course, I am only going to take those up as 6 you just indicated you would. 7 THE COURT: Why don't I shape the issue 8 as I now understand it and ask Mr. Scarola 9 for a brief commentary in that regard. 10 There has been a stipulation filed that 11 Mr. Epstein will not be attending nor 12 testifying at trial, as I understand it. 13 MR. LINK: That's correct, Judge. 14 THE COURT: So with that in mind, this 15 issue becomes one of direct evidence as 16 opposed to utilizing it in the form of 17 impeachment. 18 So the landscape has been manifested by 19 Mr. Epstein's decision in that respect. 20 Mr. Scarola, your position, please, 21 briefly. 22 MR. LINK: Your Honor, can I just 23 clarify for one second? 24 THE COURT: Sure. 25 MR. LINK: And it's because of the Palm Beach Reporting Service, Inc. EFTA00801157 17 1 nuance of the severed trial. Our notice is 2 he won't be testifying in the severed trial, 3 Mr. Edwards's claims against him, but did 4 not address his claims against 5 Mr. Rothstein. 6 THE COURT: Right. I'm talking now 7 about the trial that's set here that I'm 8 understanding to be only the case brought by 9 Mr. Edwards against Mr. Epstein on the 10 malicious prosecution claim. 11 MR. LINK: That's exactly right, Judge. 12 THE COURT: That's what we will be 13 talking about throughout the process, so 14 that there's no confusion, unless otherwise. 15 All right, Mr. Scarola, your 16 intentions. 17 MR. SCAROLA: Yes, sir, Your Honor. 18 Your Honor referred to this as a 19 stipulation. And I want to make sure 20 that -- 21 THE COURT: I will use the term 22 declaration. 23 MR. SCAROLA: Thank you, sir. I think 24 that that's an important clarification. We 25 understand that a declaration has been made Palm Beach Reporting Service, Inc. EFTA00801158 1 that Mr. Epstein will neither voluntarily 2 attend nor voluntarily testify. 3 That does not preclude us from choosing 4 to call him, noticing his appearance and 5 choosing to call him, if we want to do that. 6 That is not a decision that has yet been 7 made, although, I want to be sure that it's 8 understood that we have that right and may 9 choose to exercise it. I don't know that we 10 will. 11 The direct response to Mr. Goldberger's 12 question as to whether we are contesting 13 Mr. Epstein's right to assert his Fifth 14 Amendment privilege, we recognize the fact 15 that Mr. Epstein remains in criminal 16 jeopardy. Mr. Epstein does have a Fifth 17 Amendment right as a consequence of 18 remaining in criminal jeopardy. So we do 19 not contest his ability to assert his Fifth 20 Amendment privilege. 21 That may not be appropriate in 22 particular circumstances. But generally, he 23 has a Fifth Amendment right. 24 MR. GOLDBERGER: So with that in 25 mind -- if there's a specific question that Palm Beach Reporting Service, Inc. EFTA00801159 19 1 was asked -- I think we are up to the 2 January 25th, 2012 deposition -- if there is 3 a specific question that Counsel suggests 4 that Mr. Epstein did not have a right to 5 invoke his Fifth Amendment privilege, I 6 could address that particular question at 7 this time. 8 THE COURT: No. I don't think that 9 Mr. Scarola is questioning that. I think 10 that what his intention is going to be, 11 without him saying it directly -- but if I'm 12 not letting the cat out of the bag -- is 13 that there's definitely going to be the 14 utilization of this deposition testimony 15 before the jury with the time-permitting 16 utilization of the Fifth Amendment and other 17 privileges that are asserted. 18 That is in line with the case law that 19 says if someone is going to maintain their 20 Fifth Amendment privilege, that the Court 21 can wait until jeopardy is no longer 22 attaching and hence that information can be 23 disclosed to the jury and the jury can use 24 it any way they see fit. 25 MR. GOLDBERGER: I think we all Palm Beach Reporting Service, Inc. EFTA00801160 20 1 understand exactly that's the playing field. 2 There may or may not be an adverse 3 inference, depending on how the Court rules 4 on what comes out of the invocation. I 5 think we are all kind of saying the same 6 thing at this point. He is going to invoke 7 his Fifth Amendment privileges. 8 THE COURT: To be honest with you, when 9 I was reading this, it didn't really give me 10 much to chew on, because it just -- it just 11 relates the objections, and it doesn't 12 suggest to me whether or not you want me to 13 rule on anything having to do with this. It 14 just sets forth everything that's in here. 15 You know, I don't know what you want me 16 to say. We were in a different posture 17 before, because there had been no 18 declaration of Mr. Epstein not going to 19 testify. 20 So, frankly, until I happen to notice 21 it in the press, I had no idea that he had 22 no plans to be here. That was never 23 disclosed to me, and I didn't have any 24 inkling that that was going to happen. 25 So at this stage, we are at a much Palm Beach Reporting Service, Inc. EFTA00801161 21 1 different posture, because, again, my false 2 assumption that he was going to be 3 testifying. 4 At this point, all that's really in 5 front of me is a regurgitation of the 6 selected portions of his deposition and, I 7 believe, interrogatories as well, if I 8 remember correctly -- interrogatories and 9 interrogatory answers that Mr. Scarola, I 10 believe, is going to use and publish to the 11 jury. And there needs to be a ruling as to 12 adverse inference, but I don't have that 13 here in front of me. 14 MR. GOLDBERGER: Yes. If, in fact, 15 someone is saying, Hey, Mr. Epstein, you did 16 not have the right to invoke your Fifth 17 Amendment privilege for this particular 18 question, this interrogatory, this request 19 for admission, then I would be happy to 20 address that. 21 It is what it is right now. He has 22 invoked his Fifth Amendment privileges and 23 the Court is going to have to make rulings 24 as to what effect that is. 25 MR. LINK: Your Honor, if I may, I Palm Beach Reporting Service, Inc. EFTA00801162 22 1 think if you look at the other motion that I 2 identified, the request -- the motion on the 3 request for admissions where they're moving 4 to compel answers, where the objections to 5 the request to admission is the Fifth 6 Amendment objection -- I think that Your 7 Honor is in a slightly different posture 8 than where we are at today. 9 I think with the Court's instruction to 10 us earlier, everything that is contained in 11 binder three is subject to the Court's 12 review to determine whether the 13 objections -- which include, by the way, 14 Your Honor, relevance and 403 for some of 15 the interrogatories that talk about various 16 activities that we don't think are relevant 17 to the proceeding. But I think these all 18 fit within that category of Your Honor's 19 study time, frankly, other than item three. 20 THE COURT: I mean, I read it. And I 21 was excepting something to be at the end 22 that says we want a ruling on something. 23 But, again, like I said, it was just 24 and I don't mean to use the word 25 regurgitation in a pejorative manner. I'm Palm Beach Reporting Service, Inc. EFTA00801163 23 1 just saying that that's basically all it 2 was. 3 And it's a notice of filing deposition 4 transcript excerpts by Mr. Scarola -- by 5 Mr. Edwards's and Mr. Scarola's office. 6 MR. SCAROLA: Your Honor, the 7 procedural history is that the issues with 8 regard to assertion of Fifth Amendment 9 privilege were brought up before Your Honor, 10 and Your Honor directed us to identify each 11 of those areas where the Fifth Amendment 12 privilege was asserted with the anticipated 13 opportunity for the Court to rule in advance 14 as to whether these assertions of privilege 15 related to material that Your Honor 16 considered to be relevant to the issues that 17 are being presented before the jury, whether 18 that relevance is outweighed by some 19 prejudicial value, and -- and the extent to 20 which the assertions of privilege will give 21 rise to an adverse inference. 22 And Your Honor has, in fact, ruled 23 repeatedly that not only are specific 24 questions relevant, material and admissible, 25 but that the assertion of the Fifth Palm Beach Reporting Service, Inc. EFTA00801164 24 1 Amendment privilege will give rise to an 2 adverse inference. 3 You directed us to consider a jury 4 instruction that would be given in 5 connection with that assertion. And we have 6 prepared such an instruction and submitted 7 it to the Court. I will be happy to provide 8 Your Honor with another copy of that. 9 But it follows the mandate of the 10 Baxter decision, which basically says you 11 cannot prove an element of your civil claim 12 based solely upon an adverse inference 13 arising from a Fifth Amendment privilege 14 assertion. 15 However, the Fifth Amendment privilege 16 assertion can give rise to an adverse 17 inference that is considered in connection 18 with other evidence presented in order to 19 determine whether that element has been 20 satisfied in the proof of the claim. 21 So that's exactly what our instruction 22 says. I will pull that out and provide it 23 to Your Honor, because it might be helpful 24 to have that in front of you as well. 25 THE COURT: Thank you. I mean, I had a Palm Beach Reporting Service, Inc. EFTA00801165 25 1 lot of transcripts to read. I didn't see 2 the transcript relating to this particular 3 prior hearing so -- 4 MR. LINK: Your Honor, could I -- 5 THE COURT: I didn't recall exactly how 6 far we got on it. 7 MR. LINK: I believe we actually 8 submitted competing -- 9 MR. GOLDBERGER: I'm not sure of that, 10 quite honestly. I just asked Mr. Scarola. 11 He does not think we submitted -- 12 MR. LINK: In any event, we are not in 13 disagreement, Your Honor. I think we may 14 have had a change to it. But I don't 15 remember, frankly at this point, if we 16 agreed on what the change will be. But I 17 certainly agree that the Court ruled that 18 you were going to give an instruction and -- 19 THE COURT: I did. That, I recall. 20 MR. LINK: -- then you will make that 21 decision. 22 I think what the Court has said is 23 absolutely true. What we are missing at 24 this point is for the Court to review, for 25 example, the interrogatory questions and Palm Beach Reporting Service, Inc. EFTA00801166 26 1 determine whether our other objections 2 based on relevancy and 403 and other 3 things -- if you sustain those, then the 4 Fifth Amendment privilege doesn't come into 5 play. 6 The Fifth Amendment privilege will only 7 come into play once the Court makes a 8 determination on the depo transcripts that 9 you have indicated how you will do it. I 10 suggest interrogatories and request for 11 admissions follow the same pattern, or we 12 can argue them. 13 But the one motion, Your Honor, is 14 slightly different. But I think everything 15 in that binder that Mr. Scarola sent to you 16 fits within the category of he's not 17 contesting our ability to say Fifth 18 Amendment. It's our other objections that 19 the Court must rule upon. 20 THE COURT: That's fine. So let's -- 21 as long as I'm oriented with what you want, 22 I'm glad to help you. It's just that if you 23 look through item number three, it really 24 doesn't say anything other than refer to -- 25 and outline the different excerpts and the Palm Beach Reporting Service, Inc. EFTA00801167 2 1 interrogatories as to where the Fifth 2 Amendment and other privileges and other 3 objections were asserted. 4 MR. SCAROLA: Your Honor, there is one 5 area where we do not believe the assertion 6 of the Fifth Amendment privilege is 7 appropriate, and that relates to 8 Mr. Epstein's response to our requests for 9 admissions concerning his filings with the 10 New York State sex offender registration. 11 There clearly is no Fifth Amendment 12 privilege with respect to matters that 13 Mr. Epstein has openly and publicly 14 acknowledged. That is not a proper 15 assertion of privilege. 16 His response with regard to the 17 authenticity of that filing is clearly 18 evasive. He should be compelled to admit 19 that it is authentic or deny it, and we will 20 go to New York and we will take a deposition 21 to establish the authenticity of that 22 document. And he cannot deny having made 23 these admissions to the state of New York. 24 He cannot deny a requests for admission on 25 the basis of Fifth Amendment privilege. Palm Beach Reporting Service, Inc. EFTA00801168 1 That's been waived. 2 THE COURT: Let not get off on 3 tangents. That's number 11. I want to 4 start with number three and where we left 5 off so I can finish the rulings as to the 6 interrogatories and the deposition 7 testimony. We will get to number 11 right 8 after we finish number three. 9 MR. SCAROLA: We are on page 24, then, 10 Your Honor, of the notice of filing, which 11 delineates the specific questions and 12 answers where Fifth Amendment privilege was 13 asserted. This relates to the deposition of 14 January 25, 2012. 15 MR. GOLDBERGER: Your Honor, if I 16 understand the Court's ruling earlier today, 17 you are not going to deal with 403 18 objections, you're not going to deal with 19 relevance. You only want to deal with -- 20 THE COURT: No. I'm going to deal with 21 everything. 22 MR. GOLDBERGER: Okay, fine. 23 THE COURT: What I mentioned earlier is 24 that, in the generic deposition -- and 25 nothing here is generic -- what I was going Palm Beach Reporting Service, Inc. EFTA00801169 29 1 to say is, in the usual and customary 2 deposition designations and objections, I 3 will do that on my own time, similar to what 4 I do during trial, which is usually when I 5 am confronted with materials, I take those 6 home or I will do that, if I have some time, 7 in the office. And I will rule on those and 8 will announce my rulings to you at a 9 separate hearing. And if I need any 10 argument as to individual questions or 11 objections, I will be glad to entertain it. 12 There may be instances where you will 13 ask me to -- for further argument and I will 14 decline, as I would in a trial setting. But 15 that's what I was talking about, 16 generically. Not this. 17 So let's go back to where we were then. 18 You said the -- we have dealt with the 19 March 17th, 2010 deposition. We are on -- 20 MR. GOLDBERGER: Heading two, the 21 January 25th, 2012 deposition. 22 MR. SCAROLA: The page numbers are in 23 the upper-left-hand corner. 24 THE COURT: Which page is it? 25 MR. SCAROLA: It's page 24 of 36. Palm Beach Reporting Service, Inc. EFTA00801170 30 1 THE COURT: All right. I found it. 2 Thank you. 3 So we have, then -- we go to -- on page 4 eight; is that correct? 5 MR. GOLDBERGER: Yes, Your Honor. 6 THE COURT: The first one is, quote, 7 Did you, in fact, commit those acts? 8 The preceding questions are, quote, 9 Have you been convicted of a crime? 10 Answer: "Yes." 11 Question: "What was the crime of which 12 you were convicted?" 13 Answer: "Two counts. One is soliciting 14 prostitution and procuring a minor for 15 prostitution." 16 Question: "Did you, in fact, commit 17 these acts?" 18 Mr. Goldberger invokes the Fifth 19 Amendment privilege and Mr. Epstein follows 20 by invoking the same. 21 MR. GOLDBERGER: We continue to invoke 22 our Fifth Amendment privileges, Your Honor. 23 As Mr. Scarola set forth when he was 24 addressing the Court, we are in jeopardy on 25 potential -- Palm Beach Reporting Service, Inc. EFTA00801171 1 THE COURT: I'm not questioning that. 2 MR. LINK: The objection was relevance 3 and 403 prejudice to that question. 4 THE COURT: The objection is overruled. 5 Those objections are overruled. 6 MR. GOLDBERGER: Your Honor, however 7 for the sake of when this case is presented 8 to the jury, that same question was asked in 9 the first deposition and the Court ruled on 10 that in our first hearing. 11 THE COURT: I am not going to allow 12 repetition, just so the record is clear. I 13 don't anticipate experienced counsel 14 repeating the same information, even if it 15 was taken in two different depositions. 16 If there were different answers, then 17 it would be a different story. Same 18 invocation, I don't expect repetition. 19 MR. LINK: If Your Honor looks at the 20 next series of questions and answers through 21 the next page, we have the same exact 22 objections, Your Honor, of relevance and 403 23 prejudicial, if that helps you take a look 24 and rule. 25 MR. GOLDBERGER: And at a prior Palm Beach Reporting Service, Inc. EFTA00801172 32 1 hearing, Your Honor sustained the objection 2 based on the fact that it was limited to 3 three prior victims. 4 Your Honor said dealing with the three 5 named victims, you would overrule the 6 objection. But you sustained it on page 109 7 as of our last hearing. 8 THE COURT: Okay. Now, the first two 9 questions, the objections as to relevancy 10 and prejudice versus probative would be 11 sustained. 12 As to question, quote, Who is the 13 prostitute that you solicited for 14 prostitution with respect to the claim on 15 which you were convicted? And quote, Who is 16 the minor that you solicited for 17 prostitution with respect to the claim in 18 which you pled guilty. Those objections are 19 overruled. 20 However, the invocation of the Fifth 21 Amendment, which is subsumed in the answer, 22 would be permitted. And hence, it would 23 simply be responded to as, quote, I am going 24 invoke my Fifth Amendment right to those 25 questions. Palm Beach Reporting Service, Inc. EFTA00801173 1 Page 12, line 16. 2 Question: "Where was it that you 3 solicited" -- strike that. 4 "Where was it that you solicited for 5 prostitution the matter in the matter you 6 pled guilty?" 7 I am reading that verbatim. I don't 8 understand the question. 9 MR. SCAROLA: It's asking for the 10 location of that offense, Your Honor. 11 THE COURT: The objection is sustained 12 for relevance. 13 Next question. "When was it that you 14 solicited the prostitution in the manner in 15 which you pled guilty?" 16 I sustain the objection on relevancy 17 grounds. 18 Question -- the next -- "Have you ever 19 discussed your sex-related arrest or 20 conviction with any reporter or news media 21 representative?" 22 I'm also going to sustain as 23 irrelevant. 24 MR. SCAROLA: May I be heard with 25 regard to that one? Palm Beach Reporting Service, Inc. EFTA00801174 34 1 THE COURT: Sure. Are you going to 2 tell me something to do with the New York 3 Post article? 4 MR. SCAROLA: Yes, sir. I am going to 5 tell you that. And I'm also going to tell 6 you that it is clearly a question reasonably 7 calculated to lead to the discovery of 8 admissible evidence. If he -- and to 9 determine the validity of the Fifth 10 Amendment assertions. 11 If he is making statements to reporters 12 about these matters, we are entitled to find 13 out who it was he spoke to and what he said, 14 and to make a determination as to whether 15 what he said constitutes a waiver of Fifth 16 Amendment privilege. So I suggest to you 17 that it clearly is reasonably calculated to 18 lead to the discovery of admissible 19 evidence. 20 The assertion of the Fifth Amendment 21 right cuts off our ability to do that. We 22 should be able to point that out to the 23 jury. 24 THE COURT: This is not a motion to 25 compel. I am making ruling as what would be Palm Beach Reporting Service, Inc. EFTA00801175 1 admissible at trial. And the nature of that 2 question the Court finds to be irrelevant to 3 publish before the jury. 4 So we move down to -- 5 MR. LINK: Twenty-six of 36, Your 6 Honor. 7 THE COURT: And I believe the next 8 question is, quote, Have you ever discussed 9 your sex-related activities with minors in 10 the state of Florida with any reporter, news 11 media representative? 12 I'm going to make the same objection. 13 Strike that. 14 I am going to make the same ruling on 15 relevancy grounds for the purpose of 16 publishing the question to the jury. 17 Next is page 21, lines 6 through 22 of 18 that deposition. 19 Question: "Were the allegations in the 20 federal complaint on behalf of III. any 21 different than the allegations in the state 22 court case on behalf of Ill.?" 23 The answer is, "I don't recall." 24 Are you objecting to that? 25 MR. LINK: No, Your Honor. Palm Beach Reporting Service, Inc. EFTA00801176 1 THE COURT: Next question, "Did you, in 2 fact, engage in any sexual conduct with 3 4 He begins to answer, but then says he 5 will take the Fifth Amendment. 6 Mr. Scarola. 7 MR. SCAROLA: This is one of the three 8 victims. This is the claim that Jeffrey 9 Epstein alleges was fabricated. This is the 10 claim that he alleges was ginned up. This 11 is the claim that he alleges had no value. 12 So I'm not -- 13 Is it relevance and materiality that 14 the Court is concerned with at this point? 15 Because it's hard for me to imagine how it 16 could be more directly relevant to the 17 falsity of the allegations that Mr. Epstein 18 made against Brad Edwards when he says that 19 these claims were fabricated. 20 THE COURT: All right. Mr. Link. 21 MR. LINK: Yes, sir. Your Honor, I 22 don't want to parse words about the 23 complaint. We looked at it so many times. 24 Mr. Epstein never said these claims were 25 fabricated. Palm Beach Reporting Service, Inc. EFTA00801177 1 We have looked at that language 2 together. Mr. Scarola says it at every 3 hearing. He said the claims were used to 4 fabricate settlements by Mr. Rothstein. The 5 statement in the complaint was that the 6 claims were weak as compared to the dollar 7 amount Mr. Rothstein was saying. I think 8 this question is vague. I don't know what 9 kind of sexual conduct we are talking about. 10 This is not III.'s case against 11 Mr. Epstein. This is Mr. Edwards's case 12 against Mr. Epstein. So I don't see how 13 this question is relevant to the jury. I 14 also believe it's prejudicial, and I also 15 believe it's vague and should not come in. 16 MR. SCAROLA: Mr. Link and I have a 17 very different understanding about 18 Mr. Epstein's testimony regarding these 19 claims having been fabricated, and a very 20 different understanding about what the 21 complaint says about these claims having 22 been fabricated. Regardless of whether he 23 says they were fabricated, he clearly says 24 they were ginned up. They had no value. 25 That the value attempted to be asserted was Palm Beach Reporting Service, Inc. EFTA00801178 1 grossly aggravated. 2 Whether he engaged in sexual conduct 3 with III., who admittedly was a minor at the 4 time, how many times he engaged in sexual 5 conduct with III., clearly goes to the value 6 of these claims. 7 And he refuses the answer questions 8 with regard to those matters. That is 9 relevant -- directly relevant and material. 10 THE COURT: Well, the issue that I'm 11 looking at more than anything else is one of 12 whether or not the probative value is 13 substantially outweighed by the prejudice. 14 And in looking at 90.403, since we are 15 going to be dealing with it frequently, the 16 rule of evidence states, quote, Relevant 17 evidence is inadmissible if its probative 18 value is substantially outweighed by the 19 danger of unfair prejudice, confusion of 20 issues, misleading the jury, or needless 21 presentation of cumulative evidence. End 22 quote as to the pertinent portion of the 23 statute. 24 MR. SCAROLA: I'm not sure -- 25 THE COURT: I don't need any further Palm Beach Reporting Service, Inc. EFTA00801179 39 1 argument until I request it be provided, 2 please. 3 MR. SCAROLA: Sorry, Your Honor. 4 THE COURT: I bring us back again -- 5 it's grounds for the Court's ultimate 6 ruling. I have been contemplating this, 7 obviously, for quite some time -- to the 8 time and place relating to the filing of the 9 malicious prosecution claim, and the fact 10 that these claims were continuing to mount 11 the publicity that was being generated 12 against Mr. Epstein was also continuing and 13 relentless. For the record, I am not 14 suggesting that said publicity was 15 disproportionately provided. It simply was 16 a matter of fact. 17 And bringing us back to the time and 18 place analysis that the Court has engaged in 19 on numerous occasions in the past, when the 20 Rothstein firm crumbled and the various 21 governmental agencies were raiding the 22 offices, including the office of 23 Mr. Edwards, that is when Mr. Epstein 24 decided to bring this malicious prosecution 25 claim. Palm Beach Reporting Service, Inc. EFTA00801180 40 1 His testimony in his deposition was 2 such that he validated his claim that 3 Rothstein and others, including 4 Mr. Edwards -- including III., for that 5 matter, who was one of the defendants in the 6 Epstein malicious prosecution claim -- had 7 sensationalized, had ginned up, had 8 conflated the claims that were pending 9 against him so as to attract millions of 10 dollars in what turned out to be 11 extraordinarily difficult to understand 12 investments -- which should be placed in 13 quotes -- and were the factoring of the 14 cases by Mr. Rothstein and perhaps others, 15 though, I don't know of anything that was 16 proven or alleged against Mr. Edwards in 17 that vein. 18 And that essentially the claims against 19 Epstein relating to the Edwards clients -- 20 in particular E.W., Jane Doe and more 21 particularly III., to whom this question was 22 directed -- were inappropriately inflated 23 and the allegations, as well, made up or 24 conflated in a manner that was somehow 25 prejudicial to Mr. Epstein so as to lead Palm Beach Reporting Service, Inc. EFTA00801181 1 them to bring this claim for malicious 2 prosecution. 3 So with that backdrop in mind, I'm 4 going to overrule the objection finding 5 that, while there would be a degree of 6 prejudice like all evidence tends to elicit, 7 the prejudice here would not be unfair and 8 would not be in a scenario where the 9 probative value would be substantially 10 outweighed by the danger of unfair 11 prejudice. 12 So Mr. Epstein would have to ability to 13 use his Fifth Amendment or assert his Fifth 14 Amendment right, and hence, he has an 15 opportunity to invoke it. His objection for 16 the reasons stated on the record are 17 overruled. 18 The next question is, "How many times 19 did you engage in sexual conduct with 20 The same ruling implication of Fifth 21 Amendment. 22 Again, I believe that the ruling of the 23 Court today lends some logic to the theory 24 of adverse inference that the Court had 25 already indicated it will give. And that is Palm Beach Reporting Service, Inc. EFTA00801182 /12 1 that we leave it to the jury to decide 2 whether the Fifth Amendment invocation does 3 impact and influence their decision with the 4 utilization of the instruction. 5 Again, under these peculiar 6 circumstances -- meaning the facts of this 7 case being different than the generic 8 automobile accident or other premises type 9 of liability claim, while, again, this is a 10 very sensitive situation -- the Court 11 recognizes its sensitivity, both as it 12 relates to the victims, to Mr. Epstein, to 13 Mr. Edwards as well. 14 But at the same time, as pointed out in 15 several of the moving papers filed by 16 Mr. Edwards, Mr. Epstein chose this forum. 17 Mr. Epstein chose to proceed in the manner 18 in which he proceeded against Mr. Edwards 19 and against III. 20 We are not here, as I mentioned 21 earlier, to parse out and discuss the 22 rationale for suing Rothstein. But by 23 choosing that forum, he has brought upon 24 himself many of the issues that the Court is 25 engaging in by making these types of Palm Beach Reporting Service, Inc. EFTA00801183 3 1 allegations against Edwards, particularly at 2 the time and place in which these 3 allegations were made. 4 The Court can't emphasize enough that 5 this Court was there at that time. And I 6 don't want to inject myself as a witness. I 7 am simply stating that because -- again, by 8 happenstance, luck or other faith -- these 9 state cases were -- the majority of the 10 state cases brought, including, I believe, 11 all three of these cases were in front of me 12 at the time of the Rothstein firm debacle 13 and crumbling. 14 And consequently, I saw and was engaged 15 in those cases at the time. So the insight 16 that I have, although not necessarily 17 special, is certainly important in that I 18 can fully comprehend and understand the 19 timing issue more so than perhaps the casual 20 observer. 21 Again, I want to make clear that my 22 overall handling of these cases leads me in 23 part to be -- to the rulings that I have 24 made. 25 So he can assert the Fifth Amendment Palm Beach Reporting Service, Inc. EFTA00801184 44 1 rights, but the objections are overruled. 2 MR. VITALE: Your Honor, against that 3 backdrop with regard to some of the 403 4 objections that were being made, I'm 5 wondering if I can make a brief point I 6 thought might assist the Court. 7 THE COURT: Yes, sir. 8 MR. VITALE: Your Honor, in a malicious 9 prosecution claim, the now plaintiff, 10 Mr. Edwards, is required to live and die by 11 the complaint that Mr. Epstein filed. 12 Regarding your statement that we have 13 alleged in our papers and our pleadings that 14 he built this playing field, I think it's 15 important to talk about that just a moment. 16 We talked about III., and I picked up 17 paragraph 46. Quote, The truthfulness of 18 III.'s allegations and testimony in III.'s 19 state civil action has been severely 20 compromised by the need to seek a 21 multi-million dollar payout to help maintain 22 RA's massive fraud. 23 That's at page 21, paragraph 46. 24 Later on page 22, paragraph 46, 25 Mr. Epstein alleges that the actual -- Palm Beach Reporting Service, Inc. EFTA00801185 45 1 quote, The actual facts behind her action -- 2 her being III -- would never support such 3 extraordinary damages. 4 So when Mr. Epstein files this 5 complaint in December of 2009, he bears the 6 burden of proof. One of the issues he bears 7 the burden of proof on is his allegation 8 that what happened to III • the actual facts 9 behind her action, would never support the 10 multi-million dollars in damages being 11 sought. 12 So when a 403 objection is then raised, 13 when Mr. Edwards seeks to prove that this 14 allegation, among others, is knowingly 15 false, and the objection being raised by 16 Mr. Edwards is, well, the prejudice 17 outweighs the probative value, is that a 18 concession that Mr. Epstein would not be 19 meeting his burden of proof on these claims? 20 Because I think that would be directly 21 relevant to malice. 22 I struggle to see how you can bring an 23 action, make claims, have it dismissed on 24 the eve of summary judgment, a malicious 25 prosecution claims is filed against you, Palm Beach Reporting Service, Inc. EFTA00801186 1 then raise a 403 objection on all the 2 allegations that you had the burden to prove 3 in your claim. 4 It would seem to be almost a 5 stipulation of malice that Mr. Epstein had 6 no intent to prove his allegations. 7 THE COURT: And I appreciate your 8 supporting the Court's ruling with the 9 additional information. 10 Again, what I think we have to make 11 clear and distinguish is the relevance of 12 the questioning, vis-a-vis the allegations 13 in Mr. Epstein's malicious prosecution 14 claim, which I have tried to correlate. And 15 you helped in terms of that correlation in 16 bringing out the specific sections of the 17 complaint. And I appreciate that. 18 But again, at the same time, what I'm 19 attempting my best to do is maintain as 20 level a playing field as I possibly can, 21 despite the nature and sensitivity and 22 somewhat pureed allegations and facts that 23 are associated with this case so as to make 24 sure that we are asking relevant questions, 25 but not going so far as to create an Palm Beach Reporting Service, Inc. EFTA00801187 47 1 unleveled playing field by using salacious 2 and otherwise inappropriate commentary or 3 questioning. And trying to draw that line, 4 while it's a difficult one, is something 5 that I'm endeavoring to do. So I thank you 6 for that. 7 MR. LINK: Your Honor, may I make one 8 comment on that, please? 9 THE COURT: Sure. 10 MR. LINK: I appreciate Mr. Vitale 11 doing that. I think he actually made my 12 point for me, which is this. And the Court 13 has been very clear about this. We are not 14 trying malicious prosecution case. 15 She's not a plaintiff here. And maybe if 16 she was, the allegations, the relevance 17 might outweigh the prejudice. But she's not 18 the plaintiff. It's Mr. Edwards. 19 THE COURT: I understand. Make no 20 mistake, capturing the time of this 21 particular lawsuit filed by Mr. Epstein is 22 critical to this Court's analysis. 23 Capturing the allegations that were 24 filed and supplemented, as far as the 25 Court's ruling is concerned by Mr. Vitale's Palm Beach Reporting Service, Inc. EFTA00801188 1 referencing the complaint and the 2 allegations pertaining specifically to III. 3 is critical to this Court's analysis. 4 The fact that this case was brought at 5 this critical time period when Edwards was 6 probably at his weakest, when the claims of 7 these minors could have been compromised by 8 the extraordinary events which took place at 9 that time involving Rothstein and his 10 cohorts, what we have all agreed should have 11 been a blowing up, for lack of a better 12 term, of that Rothstein firm at that 13 particular time, a viable argument can be 14 made by Edwards, and could be made by III.1 15 as well, that Mr. Epstein pounced on the 16 opportunity to strike at their weakest 17 moment so as to potentially bring them to 18 their knees and compromise their claims for 19 a value that would have been less than the 20 true value of their claims. And that served 21 as his motivation for bringing this action. 22 That could be the argument that's made. 23 And that forms, at least to some degree, the 24 underpinnings of this Court's rulings. 25 I am not going to sit here and be naive Palm Beach Reporting Service, Inc. EFTA00801189 49 1 as to what may or may not have transpired. 2 That would be an abdication of my 3 responsibility. 4 Judges have to be sensitive, in my 5 view, to the underlying circumstances that 6 have been raised by the respective parties. 7 And that sensitivity is engendered by the 8 circumstances that transpired here. 9 And to ignore those circumstances, 10 again, would be an abdication of my 11 responsibility. 12 Next issue, please. 13 MR. SCAROLA: Your Honor, we move to 14 the objections to general interrogatories 15 dated September 16th, 2010 16 THE COURT: I am with you. 17 MR. SCAROLA: These interrogatories 18 relate to the extent of the criminal 19 activity in which Mr. Epstein was engaged. 20 I will point out to Your Honor that 21 Count 2 of the complaint filed against 22 Mr. Edwards seeks to enjoin all defendants 23 from engaging in any of the conduct that is 24 alleged -- the broad range of conduct that 25 is alleged in the complaint, and asks for an Palm Beach Reporting Service, Inc. EFTA00801190 50 1 injunction against Mr. Edwards from the 2 continuation of the civil actions brought 3 against Epstein until criminal charges have 4 been formally brought against Mr. Edwards 5 and seeks -- 6 THE COURT: Mr. Epstein. 7 MR. SCAROLA: No, against Mr. Edwards. 8 What is requested is an injunction 9 against any further prosecution of the 10 pending civil claims -- all pending civil 11 claims until criminal charges have been 12 brought against Mr. Edwards. 13 THE COURT: Thank you. 14 MR. SCAROLA: Context, as Your Honor 15 has recognized, is extremely important. 16 Motive, as Your Honor has repeatedly 17 recognized, is extremely important. What 18 was Jeffrey Epstein attempting to accomplish 19 by the filing of this complaint? He tells 20 us he was attempting to enjoin the 21 prosecution of the civil actions pending 22 against him. He was clearly attempting to 23 compel settlements of all of the claims that 24 Edwards was prosecuting for sums far less 25 than the amounts being claimed against him. Palm Beach Reporting Service, Inc. EFTA00801191 1 He was reasonably seeking to deter all 2 victims from prosecuting claims against him 3 through the assault on III. and Bradley 4 Edwards. And pending at this time was an 5 effort to set aside the crime -- through the 6 Crime Victims' Rights' Act case, the plea 7 deal that would have and still does expose 8 Jeffrey Epstein to federal prosecution. 9 In addition to that, evidence existed 10 that Jeffrey Epstein had engaged in the same 11 type of criminal conduct in which he had 12 engaged in Palm Beach County, Florida, in 13 various other locations, both in the United 14 States and outside the jurisdiction of the 15 United States. 16 So it is clearly relevant and material 17 to know what Jeffrey Epstein -- the full 18 extent of Jeffrey Epstein's exposure was in 19 making a determination as to why someone 20 would go to the extraordinary lengths that 21 Mr. Epstein went to in filing these claims, 22 which he knew to be false, against Bradley 23 Edwards. He would do it because he hoped to 24 achieved all of those things. 25 And the full extent of his potential Palm Beach Reporting Service, Inc. EFTA00801192 1 criminal exposure, how many children he had 2 abused, over what period of time -- where, 3 when and how -- is clearly relevant and 4 material. 5 THE COURT: Thank you. 6 Mr. Link. 7 MR. LINK: Your Honor, I think we are 8 talking about interrogatories. 9 THE COURT: I would like to start with 10 numbers two and three. 11 MR. LINK: In listening to what 12 Mr. Scarola said, frankly, I'm confused 13 which case we are trying. 14 The criminal case is over. The cases 15 against the three Edwards clients have been 16 settled. They were settled nine years 17 ago -- or eight years ago. 18 We are talking about, as this Court has 19 told us, simply the malicious prosecution 20 action. That's what we're trying. 21 This Court has told Mr. Scarola and 22 myself many times that you're to create a 23 balance of the playing field, that there 24 would be some information about Edwards' 25 three clients that you will let in. But Palm Beach Reporting Service, Inc. EFTA00801193 53 1 that you have ruled consistently, Your 2 Honor, that information related to 3 non-Edwards clients is not going to come in. 4 THE COURT: To a certain degree, just 5 so the record is clear. 6 In other words, I am still dealing with 7 the issue of the gross amount of settlement 8 paid by Mr. Epstein, as well as the number 9 of claims brought against Mr. Epstein in the 10 aggregate -- 11 MR. LINK: And I apologize. I know 12 that's under this Court's consideration. I 13 didn't mean to eliminate that. 14 But the point of it is this. 15 Mr. Scarola and Mr. Edwards want to try this 16 case to the jury, what about a horrible, 17 rotten person Mr. Epstein was and his 18 conduct with the alleged victims in hopes 19 that that will taint the jury to dislike 20 Mr. Epstein enough that they will award 21 Mr. Edwards, whose career has skyrocketed on 22 the back of Mr. Rothstein, who has admitted 23 he has no damages of an economic type, so 24 that they will get money. 25 And this Court has been very clear to Palm Beach Reporting Service, Inc. EFTA00801194 54 1 us about keeping this playing field leveled. 2 And for us to stand here and make arguments 3 about the criminal conduct, how much time he 4 spent in jail, anything else that happened 5 outside of whether the -- the key question 6 in this case, Judge, you said it dozen 7 times -- 8 I will tell you, I occasionally step 9 back and say, Gosh, you got it right. You 10 do have it right. Doesn't mean I don't 11 process it. But it really comes down to the 12 time this complaint was filed. And you said 13 it in context. 14 And issue of why it was filed, as 15 Mr. Scarola says, may go to the level of 16 malice. No question about it. But the 17 primary issue in this case has to do with 18 probable cause, and was there sufficient 19 information at time the complaint was filed 20 to give a reasonable person a sufficient 21 basis to bring this suit. 22 And I am with you, Judge. You may not 23 like the timing. You may have felt 24 Mr. Edwards was at his weakest 25 THE COURT: I don't want to be Palm Beach Reporting Service, Inc. EFTA00801195 55 1 misconstrued. Whether I like or dislike the 2 timing is not of consequence to me. What 3 I'm suggesting to you is that it is the 4 responsibility of any court, in my 5 respectful view, to be able to recognize the 6 nuances, and to recognize context, so as to 7 be able to better rule on issues that come 8 before the Court. 9 If the Court is immune to that and 10 simply wants to call balls and strikes, for 11 some judges that may be appropriate. But if 12 you are not willing to delve into the 13 context, then, as I mentioned earlier, I 14 think personally it would be an abdication 15 of my personal responsibility. I can't 16 speak on behalf of other courts. So that's 17 where I wanted to make sure that we are 18 clear. 19 Whether I like or dislike something is 20 of no consequence to me. I am a process 21 guy, as, hopefully, all of you know. I'm 22 interested in the preservation of the 23 process and preservation of appropriate 24 protocol. The result is of no consequence 25 to me. I don't care. Palm Beach Reporting Service, Inc. EFTA00801196 1 What I do care about is that we are 2 going to process this case in a manner 3 that's going to be professional; that's 4 going to stick to the issues; that is not 5 going to be sensationalized, unless 6 necessarily required by the nature of the 7 manner in which a defense is brought or a 8 claim is brought; and that everyone is going 9 to be treated respectfully, with dignity, 10 whether it be a victim, whether it be 11 Mr. Epstein, whether it be Mr. Edwards, 12 anyone who comes before the Court, whether 13 it be a witness or otherwise. 14 So that's not going to be changed by 15 virtue of the nature of this case, the 16 public nature of the case, the publicity 17 engendered by the case. It's not going to 18 happen. 19 I don't need any further argument. The 20 objections to numbers two and three are 21 sustained. 22 Number four, "What is your best 23 estimate of the number of times you have 24 witnessed Ghislaine Maxwell engage in sexual 25 activity with minor females?" Palm Beach Reporting Service, Inc. EFTA00801197 1 That question is also -- the objections 2 to that question are also sustained. I'm 3 sustaining them on relevance grounds. I'm 4 also sustaining that, if there is any 5 relevance that the Court is unable to 6 determine, that a 403 analysis would be 7 engaged so any remote probative value would 8 be materially outweighed -- substantially 9 outweighed by the prejudice. 10 Five. Let's talk about that. 11 Mr. Scarola. 12 MR. SCAROLA: This clearly has to do 13 with economic motive, Your Honor. How much 14 it has cost him is part of his motive for 15 attempting to have all of these actions 16 stayed to deter others from bringing claims 17 against him. The financial jeopardy that he 18 was facing and faced is relevant and 19 material to both motive and malice. 20 THE COURT: Mr. Goldberger. 21 MR. GOLDBERGER: Your Honor, I would 22 raise a Fifth Amendment objection to this 23 question. I don't know whether Counsel is 24 objecting to that. This is clearly -- as 25 background for the Court, Mr. Epstein, when Palm Beach Reporting Service, Inc. EFTA00801198 1 this case was initiated, was being 2 investigated, not only for the acts that the 3 Court is well aware of, but also for money 4 laundering. 5 And Judge Marra, in part of the Jane 6 Doe 2 case, entered an exhaustive order 7 confirming Mr. Epstein's right to invoke his 8 Fifth Amendment privileges on anything 9 relating to finances or net worth. 10 So I would suggest to the Court that 11 any questions concerning any amount of money 12 that Mr. Epstein has, or any amount of money 13 that Mr. Epstein paid, anything that 14 suggests how much Mr. Epstein has in the 15 bank would come under the purview of the 16 Fifth Amendment based on the money 17 laundering aspect of the government's 18 investigation of him. 19 THE COURT: Well, the allegations in a 20 malicious prosecution claim are not only 21 relating to the captured moment in time when 22 the malicious prosecution claim was brought, 23 but also the continuation of the claim 24 against Mr. Edwards. And the question is 25 not all encompassing. The question speaks Palm Beach Reporting Service, Inc. EFTA00801199 1 to the, quote, this lawsuit. 2 MR. GOLDBERGER: Anything at all that 3 provides a connection, a step in the 4 process, that would suggest how much 5 Mr. Epstein has -- 6 THE COURT: It is not a question of 7 what Mr. Epstein has. It's what he has 8 incurred. Meaning, what he has either paid 9 or been billed. 10 MR. LINK: Your Honor, may I interrupt 11 and have a moment with Counsel? 12 THE COURT: Yes. But let me just 13 finish with my thought, if I could, please. 14 Getting back to his testimony and his 15 allegation in his malicious prosecution 16 claim, Mr. Epstein states that Rothstein and 17 the litigation team knew or should have 18 known that the three filed cases were weak 19 and had minimal value. His -- and that's 20 just one of the allegations that I picked 21 out. 22 But his ability to afford to prosecute 23 a malicious prosecution claim of this nature 24 would at least have tangential relevance to 25 what I spoke about earlier, i.e., the Palm Beach Reporting Service, Inc. EFTA00801200 60 1 context of when this case was brought. So 2 there is at least tangential relevance here. 3 And the fact that he could support this 4 type of claim being brought against Edwards, 5 Rothstein and III. at the time, and then 6 continued to bring this case against Edwards 7 I believe, at least, is marginally relevant. 8 And I fail to see, at this point, the 9 probative value being materially outweighed 10 by the unfair prejudice. And I don't see a 11 Fifth Amendment assertion here. His ability 12 to afford and prosecute through his 13 attorneys a malicious prosecution claim does 14 have some relevance. 15 MR. GOLDBERGER: I don't quite see the 16 relevance. 17 MR. LINK: Before we continue, may I 18 have one minute, Judge? Your Honor, do you 19 mind? 20 THE COURT: Sure. 21 MR. LINK: Thank you. 22 Your Honor, may I have a moment on 23 relevance? 24 THE COURT: Off the record. 25 (A discussion was held off the record.) Palm Beach Reporting Service, Inc. EFTA00801201 1 MR. LINK: Because of this 2 interrogatory question, I think we actually 3 have to look at it. Here is my objection to 4 the question. And the reason -- I will tell 5 you the reason why I wanted to talk to my 6 co-counsel is because part of our damage 7 claim was the amount of fees we were 8 spending in the underlying case related to 9 what we saw as unnecessary litigation 10 conduct, Your Honor, that we tied into the 11 Rothstein Ponzi scheme. 12 THE COURT: I am not saying that you 13 can't bring that out if you wish to. I have 14 no problem in that regard. 15 MR. LINK: I do. 16 THE COURT: I don't want to argue 17 apples and oranges, which is what I'm trying 18 to avoid. And that is, sure, if there's 19 evidence that Mr. Epstein was paying 20 exorbitant sums to his attorneys to somehow 21 defend claims that had to do with either 22 Mr. Edwards or someone from Mr. Edwards's 23 firm, either prior to or at the time of or 24 subsequent to his affiliation with 25 Rothstein, I have no difficulty whatsoever Palm Beach Reporting Service, Inc. EFTA00801202 62 1 if Mr. Epstein wants to testify or have 2 someone else testify as to what he perceived 3 to be exorbitant or very high sums that he 4 was paying in order to defend himself in 5 those claims. 6 But at the same time, as I said before, 7 that's the apples argument. The oranges 8 argument goes to the heart of the malicious 9 prosecution claim and whether or not it is 10 relevant to the extent that Mr. Epstein had 11 the financial wherewithal, had a cadre of 12 lawyers who were able to represent him 13 infinitely, if you will, to the extent where 14 it would influence Edwards and III. at the 15 very least and potentially any of the 16 litigants who were bringing claims against 17 Mr. Epstein because of the context that we 18 have already discussed at length. 19 MR. LINK: I understand that. And 20 that's why I was pointing out the language 21 here, which, if you remember, the case 22 against Mr. Edwards went away in 2012. 23 This interrogatory asks for every 24 single penny paid from the beginning of 25 time, essentially, through trial. But I Palm Beach Reporting Service, Inc. EFTA00801203 1 don't see how the fees and costs spent 2 defending the malicious prosecution action 3 by Mr. Edwards is relevant to what the Court 4 just described. That's my objection to it, 5 Judge. 6 THE COURT: I'm going to grant the 7 I'm going to sustain the objection in part 8 and overrule the objection in part. You 9 made a good point, Mr. Link. I am going to 10 follow your suggestion. 11 MR. SCAROLA: Could I have a chance to 12 speak before you do that, sir? 13 THE COURT: If you wish. 14 MR. SCAROLA: And I'm sorry to 15 interrupt the Court. I didn't have a chance 16 to speak to that regard. 17 THE COURT: If you haven't already 18 spoken on it, go ahead. 19 MR. SCAROLA: Thank you, Your Honor. I 20 had not. 21 As Mr. Link correctly points out, 22 paragraph 51 of the complaint claims as 23 damages as a direct and approximate result 24 of the fraudulent and illegal conduct that 25 Mr. Edwards is alleged to have engaged, Palm Beach Reporting Service, Inc. EFTA00801204 64 1 Mr. Epstein, quote, incurred significant 2 attorney's fees and costs defending the 3 discovery that was not relevant, material 4 and/or calculated to lead to the 5 admissibility of evidence, which was done 6 for the sole purpose of pumping the cases to 7 investors. 8 He also makes claims for attorney's 9 fees and costs under both the RICO claim and 10 the state civil action for criminal 11 practices act, and treble damages for all of 12 those fees that he's alleged to have paid. 13 So what he is paying out is relevant and 14 material with regard to the damage claims 15 that have been made. 16 But in addition to that, you cannot 17 bring a claim in good faith if you don't 18 intend, from the outset, to support that 19 claim by providing relevant and material 20 information. 21 So the fact of the assertion of the 22 Fifth Amendment privilege when he has put 23 those matters at issue is what makes this 24 relevant and material, because it 25 demonstrates that these claims were not Palm Beach Reporting Service, Inc. EFTA00801205 65 1 brought in good faith. 2 He did not intend to support his damage 3 claim with relevant and material 4 information. He intended, from the outset, 5 to assert his Fifth Amendment privilege and 6 deprive us of the ability to be able to 7 explore relevant and material information. 8 So I have no problem with the late 9 assertion of a Fifth Amendment privilege to 10 this question. I don't challenge that. I 11 accept -- 12 THE COURT: I don't understand it, so 13 maybe I'm missing something. 14 MR. SCAROLA: This is not a motion to 15 compel. 16 THE COURT: I don't understand how a 17 question about what is the total obligation 18 that is incurred to date for both fees and 19 costs, both paid and currently owing in 20 connection with your representation of this 21 lawsuit, triggers a Fifth Amendment 22 privilege assertion. Help me with that. 23 MR. SCAROLA: I don't believe that it 24 does. I think it's an invalid assertion of 25 privilege. Palm Beach Reporting Service, Inc. EFTA00801206 66 1 THE COURT: But I don't even understand 2 how it could even be remotely connected to a 3 fear that stating the amount of money 4 paid and the ruling was going to be and 5 will be that it will cover a one-year period 6 of time prior to the bringing of this action 7 and up to the 2012 date where the summary 8 judgment motion was abandoned, and only for 9 the underlying three cases dealing with 10 E.W., III. and Jane Doe one year prior to 11 the bringing of the malicious prosecution 12 claim and up to 2012 abdication or 13 abandonment or voluntary dismissal of the 14 underlying claim against Edwards. So that's 15 the ruling of the Court. 16 MR. GOLDBERGER: With that 17 clarification -- 18 THE COURT: Excuse me, Mr. Goldberger. 19 Unless somebody explains to me how the Fifth 20 Amendment -- how criminal prosecution is 21 anticipated or how Mr. Epstein would be 22 exposed to criminal prosecution solely by 23 disclosing the amount -- I'm not asking him 24 to disclose or not requiring him to disclose 25 to whom it was paid. I'm not requiring him Palm Beach Reporting Service, Inc. EFTA00801207 1 to disclose from where it was paid. I'm not 2 suggesting that he state any net worth 3 issues. I'm not requiring him to set forth 4 his bank account information. None of that. 5 All I'm saying is, under the context 6 that was read by Mr. Scarola relating to the 7 claims that were made in this case, 8 vis-a-vis the underlying amounts that he was 9 apparently required to pay his lawyers to 10 defend him against what would be spurious, 11 unfounded, weak claims in those three cases 12 only -- E.W., III. and Jane Doe -- and at 13 the time -- a year before, I should say, 14 would give us an indication of what the 15 payments were and would not be overly 16 invasive or remote in time. 17 And then up to the time that he took a 18 voluntary on the underlying claims brought 19 against Edwards provides, not only, again, 20 the information that was read by Mr. Scarola 21 as to the underlying reasons for bringing 22 this malicious prosecution claim, but also, 23 as I said -- I think it bears repeating -- 24 his financial wherewithal at the context of 25 when this case was brought, vis-a-vis Palm Beach Reporting Service, Inc. EFTA00801208 CC) 1 Edwards situation at the time, meaning a man 2 without a law firm -- to borrow a 3 paraphrase a movie title and clients that 4 were depending upon Edwards's 5 representation, presumably depending upon 6 Edwards being with a law firm that could 7 finance the cases that were brought on 8 behalf of these three individuals, and that 9 financial wherewithal having a bearing on 10 the relevant evidence that would be brought 11 to support what the plaintiff in the 12 malicious prosecution claim is saying that 13 this was without any probable cause and, in 14 fact, was maliciously brought. 15 MR. SCAROLA: Your Honor, I don't 16 remember being in a position like this 17 before where a court was agreeing to give me 18 information that I had asked for and my 19 telling the court, Thank you, but I don't 20 want it. 21 This isn't a motion to compel. What we 22 have is a motion with regard to the 23 assertion of the Fifth Amendment privilege. 24 If Your Honor turns the page -- 25 THE COURT: I have it here in front of Palm Beach Reporting Service, Inc. EFTA00801209 69 1 me. 2 So you're not looking for the 3 information? 4 MR. SCAROLA: No. 5 THE COURT: All you're saying is that 6 under this situation, the Fifth Amendment 7 privilege would not be applicable. But 8 you're suggesting to me -- I thought I heard 9 earlier that you can envision a scenario 10 where it would be. 11 MR. SCAROLA: I'm not telling you that 12 it's not applicable. I can envision a 13 situation where it would be a link in the 14 chain in a money laundering claim. I can 15 envision that. 16 So the issue before the Court is the 17 same issue that we have been dealing with 18 with regard to all of these other questions. 19 Do we get to tell the jury that, when we 20 asked Mr. Epstein to tell us about his 21 damages that he claimed in his complaint, 22 his response was, "I assert the Fifth 23 Amendment." That's the issue before the 24 Court. 25 Can we read the question? Can we read Palm Beach Reporting Service, Inc. EFTA00801210 70 1 the assertion of Fifth Amendment privilege? 2 And can we, then, argue an adverse inference 3 from that? 4 This isn't a motion -- I'm sorry we 5 seemed to have gotten off track there. This 6 is not a motion to compel. So we are beyond 7 the point where I want that information. 8 THE COURT: Awesome. 9 MR. GOLDBERGER: Having said that, Your 10 Honor -- 11 MR. LINK: Hang on. 12 THE COURT: All I'm going to say is 13 this. Now that we've gotten to the point -- 14 and I appreciate reining back the analysis 15 here -- I don't find here that it is an 16 appropriate invocation of the Fifth. 17 However, it would be allowed to be read to 18 the jury and that -- it be allowed to be 19 read in the context that the witness took 20 the Fifth as to this question number five. 21 The manner in which the question is 22 phrased, as I said before, I will be willing 23 to whittle it down, as I've indicated, if 24 that was the request. The objection, 25 however, does not include overbreadth. It Palm Beach Reporting Service, Inc. EFTA00801211 1 is for relevance, burdensome and propounded 2 for harassment and asks for information 3 which is protected by the Fifth Amendment of 4 the United States Constitution. 5 Now, that includes number five. It 6 includes all of the interrogatories before 7 me, two through nine. 8 So if you are withdrawing the Fifth 9 Amendment assertion, then what happens? 10 MR. GOLDBERGER: So the record is 11 clear, as to this question -- question five 12 only -- we do withdraw our invocation of our 13 Fifth Amendment privilege as to question 14 five. 15 MR. SCAROLA: Our position is, too 16 late. Too late. That assertion of Fifth 17 Amendment privilege has been in place in 18 this case for eight years. We are now 19 approaching trial. 20 THE COURT: But you don't want the 21 information, Mr. Scarola. You told me that 22 on the record. So what then is the point, 23 other than to make him look bad, so to 24 speak -- and forgive the lack of legal 25 terminology? Palm Beach Reporting Service, Inc. EFTA00801212 72 1 MR. SCAROLA: The point is this, sir. 2 When you file a complaint, you undertake the 3 obligation to provide all information 4 relevant and material or reasonably 5 calculated to lead to admissible evidence. 6 THE COURT: And I am willing to, in 7 pertinent part, compel him to give you that 8 information. You have refused the 9 information. 10 Now, if the information is of no 11 benefit from an evidentiary standpoint in 12 front of a jury, then what is the purpose of 13 announcing and reading this interrogatory 14 with the invocation of a Fifth Amendment 15 privilege, other than to cast him in a bad 16 light? 17 MR. SCAROLA: Your Honor, I apologize 18 for not having made this clear, but let me 19 try one more time. 20 THE COURT: I understand what you're 21 saying. Part of his allegations -- and I'm 22 only repeating this so I better understand 23 it. 24 MR. SCAROLA: Yes, sir. 25 THE COURT: Part of his allegations in Palm Beach Reporting Service, Inc. EFTA00801213 1 his malicious prosecution claim stated that 2 he was paying exorbitant amounts of money in 3 order defend himself from what, in his mind, 4 was overinflated, overexaggerated claims 5 that were being promulgated and propagated 6 by Rothstein and his cohorts, which included 7 Edwards and III., at least in part. 8 MR. SCAROLA: Yes, sir. 9 THE COURT: Okay. Now, my point is, if 10 you are not looking for the substantive 11 information, which you have indicated to me 12 you are no longer interested in, what other 13 benefit is it to your client to read this 14 interrogatory if there's no substantive gain 15 from it, other than to cast him in a bad 16 light? 17 Because, again, we have already 18 determined -- I have already determined that 19 questions relative, for example, to any 20 sexual engagement with III. would be 21 relevant because it goes directly to the 22 heart of some of the allegations made by 23 Mr. Epstein in his malicious prosecution 24 claim pertaining to the weak nature of those 25 claims and the conflating and exaggerating Palm Beach Reporting Service, Inc. EFTA00801214 74 1 of those claims, which otherwise would have, 2 quote, minimal value, end quote. 3 I got that, I think. 4 MR. SCAROLA: Yes, sir. I think you 5 have. 6 THE COURT: So let's talk about the 7 context of this question and what other 8 benefit would it be other than casting in 9 bad light and triggering yet another adverse 10 inference against Epstein. 11 MR. SCAROLA: A civil action filed for 12 damages may be filed in good faith if you 13 have a reasonable basis to believe that you 14 can prove your claim and if you are willing 15 to participate in the process necessary in 16 order to recover those civil damages. 17 If you enter upon this process knowing 18 that you have no intention of ever providing 19 discovery that is relevant and material to 20 the very damages that you claim, then that 21 goes to whether you ever filed in good 22 faith. 23 You didn't file in good faith because 24 you had no intention of providing 25 information relevant and material to the Palm Beach Reporting Service, Inc. EFTA00801215 75 1 damages that you claim. 2 That's why the fact that, in 2010, 3 Jeffrey Epstein was refusing to provide 4 information about the damages that he 5 claimed is relevant and material. His 6 changing his mind eight years later when I 7 don't have an opportunity to depose him 8 anymore, when he's telling us he's not going 9 to show up at trial, when he's telling us he 10 doesn't intend to testify, that doesn't 11 change the fact that, when he filed this 12 case, he had no intention of supporting it 13 with discoverable evidence. That's the only 14 point I'm trying to make. 15 And if Your Honor does not believe that 16 to be relevant and material, then I 17 understand that you disagree with the 18 position I have asserted. I just want to 19 make sure that my position is clear. 20 THE COURT: Understood. 21 MR. SCAROLA: Getting that information 22 now is not material. What's material is 23 proving that he had no intention of 24 providing it when he filed this claim. 25 That's what I'm trying to -- that's the Palm Beach Reporting Service, Inc. EFTA00801216 76 1 point I'm trying to make, sir. 2 MR. LINK: Your Honor, can I have just 3 one minute? 4 THE COURT: Sure. 5 MR. LINK: So if you read the 6 interrogatory, it doesn't ask what are your 7 damages, which is what Mr. Scarola says he's 8 looking for. He actually asked that 9 question in an interrogatory in 2011 and he 10 answered it. 11 THE COURT: Mr. Scarola, show Mr. Link 12 the provision that you read, because if he's 13 like me, I'm not a -- I'm more of a visual 14 learner than I am auditory, so -- 15 MR. LINK: I'm looking at his 16 interrogatory. 17 THE COURT: I believe you were reading 18 a section of his 19 MR. LINK: Where we're seeking 20 attorney's fees and damages. 21 Yes, sir. Let's talk about that for a 22 minute. 23 THE COURT: Let me just take a look and 24 refresh my recollection, please, and I will 25 be with you in a moment. Palm Beach Reporting Service, Inc. EFTA00801217 77 1 MR. LINK: That's not the -- 2 MR. SCAROLA: This is the addendum 3 clause. This is where he's saying what his 4 damages were. And he asked on top of those 5 damages, for attorney's fees and costs. 6 MR. LINK: Your Honor, I agree, which 7 is what I said to you earlier, which is, we 8 were seeking at the time -- and we filed 9 this December 2009 -- December 9, 2009 -- 10 fees that had been incurred to that date. 11 That was for the damages. 12 And I have said if this interrogatory 13 asked that question -- Mr. Scarola said, 14 Judge, this asked for damages. It doesn't 15 ask for damages. 16 One year later, Judge, he asked about 17 damages in 2011 in an interrogatory, and we 18 answered it. We answered his damage 19 interrogatory. 20 This interrogatory has nothing to do 21 with damages. He can say it says damages 22 all he wants. That's not what it says. And 23 we answered it. 24 He says we wouldn't provide 25 information. We gave him damage information Palm Beach Reporting Service, Inc. EFTA00801218 1 and answered Mr. Scarola's interrogatory one 2 year later when he propounded it properly 3 and said, What are your damages? That's a 4 proper interrogatory. This interrogatory 5 does not ask that question. 6 So I think if you are on a motion to 7 compel, which we're not, what the Court 8 would do is exactly what you said: I'm going 9 to dice this up a little bit, and I would 10 have then asked for 10 days to answer the 11 way you reframed it. 12 But it is unrelated to the damage 13 interrogatory that Mr. Scarola gave us and 14 we answered. 15 THE COURT: Mr. Scarola has managed to 16 persuade me that the invocation of the Fifth 17 Amendment at the time it was invoked 18 the date I'm giving here, 19 September 16, 2010, nearly eight years 20 ago -- the attempt now to withdraw the 21 invocation would be too little too late. 22 The complaint and its allegations -- 23 which, again, I am trying to steadfastly 24 follow and track as a basis for my ruling -- 25 does reflect a claim for underlying, i.e., Palm Beach Reporting Service, Inc. EFTA00801219 79 1 fees generated and associated with at least 2 the E.W., III. and Jane Doe cases, and 3 particularly where III. was a named 4 defendant in the underlying claim brought by 5 Mr. Epstein against Rothstein, Edwards and 6 III. that Mr. Epstein brought that into the 7 case. And as such, if he was unable, 8 unwilling or otherwise believed he had a 9 Fifth Amendment privilege, then it's going 10 to be allowed to be published. 11 The remaining objections are overruled. 12 MR. SCAROLA: We are withdrawing number 13 six, Your Honor. You needed not deal with 14 that. 15 The next one is number eight. 16 THE COURT: Thank you. The same ruling 17 would apply. That is, the objections are 18 overruled similar to the reasons that I have 19 already announced on the record pertaining 20 to the deposition questions that were 21 associated with this individual III. The 22 invocation of the Fifth Amendment will be 23 able to be published to the jury. 24 Are you still proceeding with nine? 25 MR. SCAROLA: Yes, sir, without Palm Beach Reporting Service, Inc. EFTA00801220 80 1 argument. 2 THE COURT: What does that mean? 3 MR. SCAROLA: There's a typographical 4 error. In the retyping, I think the 5 original interrogatory was -- 6 THE COURT: I just didn't understand 7 it. Now I get it. 8 The objection is sustained as to 9 relevancy. Therefore, it would not be able 10 to be read as an invocation of the Fifth 11 Amendment privilege evidence. 12 Let's move on now. 13 MR. SCAROLA: These can probably be 14 dealt with as a group, Your Honor. These 15 are all net worth interrogatories in 16 connection with the punitive damage claim 17 pending against Mr. Epstein. 18 THE COURT: Forgive me for this, but 19 has the punitive damage claim been formally 20 brought as of yet? 21 MR. SCAROLA: Yes, sir. 22 THE COURT: And that's been ordered by 23 the Court pursuant to statute? 24 MR. SCAROLA: Yes, sir. 25 THE COURT: I know I have asked the Palm Beach Reporting Service, Inc. EFTA00801221 81 1 question before. I apologize for asking it 2 again. 3 With that in mind, let's go ahead and 4 proceed. Thank you. 5 Your objection, Mr. Goldberger. 6 MR. GOLDBERGER: As to each and every 7 one of the net worth interrogatories -- it 8 is not an objection. I invoke Mr. Epstein's 9 Fifth Amendment privileges as to those 10 questions. I would once again remind the 11 Court that Mr. Epstein was the subject of a 12 money laundering investigation. 13 MR. SCAROLA: We are not challenging 14 the validity of the assertion of the 15 privilege. 16 MR. GOLDBERGER: Thank you. 17 THE COURT: So it will just be a 18 publication issue? 19 MR. SCAROLA: That's correct. Are we 20 permitted to publish these responses and the 21 invocation of the Fifth Amendment so that 22 the jury may draw reasonable adverse 23 inferences from the refusal to answer? 24 THE COURT: It would only be the 25 assertion of the Fifth, Sixth and Fourteenth Palm Beach Reporting Service, Inc. EFTA00801222 1 Amendment granted by the United States 2 Constitution. The rest of this information 3 would not be admissible to the jury. 4 In other words, I'm not going to allow 5 the publication of the rationale used by 6 counsel. 7 MR. SCAROLA: It would only be the last 8 sentence, Your Honor. I can cannot provide 9 answers. 10 THE COURT: Is that agreeable to you? 11 MR. GOLDBERGER: Yes, Your Honor. 12 Thank you. 13 THE COURT: Thank you. 14 We move now to responses to request for 15 admissions, dated February 26, 2013. 16 MR. GOLDBERGER: So I would reinvoke, 17 if necessary, our Fifth Amendment privileges 18 to each and every one of the requests for 19 admissions. 20 THE COURT: Before I misconstrue the 21 rationale of why this is being brought 22 before me, Mr. Scarola. 23 MR. SCAROLA: Yes, Your Honor. 24 Again, it is our -- it is our right -- 25 although, no requirement -- it is our right Palm Beach Reporting Service, Inc. EFTA00801223 83 1 to introduce evidence with regard to the 2 pecuniary circumstances of the defendant in 3 a punitive damage case. 4 These requests for admissions go 5 directly to that issue, and we should be 6 permitted to read them to the jury and to 7 demonstrate that there was a refusal to 8 answer, so that the jury may draw whatever 9 adverse inference that is appropriate. 10 THE COURT: So this -- again, only the 11 last sentence of the objection? 12 MR. SCAROLA: That's correct, sir. 13 THE COURT: And, Mr. Goldberger, you 14 are agreeing to that? 15 MR. GOLDBERGER: Yes. We are 16 continuing to invoke our Fifth Amendment 17 privileges. 18 THE COURT: For the record, there's 19 been no request to deem the requests for 20 admissions admitted. 21 MR. SCAROLA: That is correct, sir. 22 THE COURT: Very well. 23 MR. LINK: Your Honor, so the record is 24 clear, this is a bifurcated trial. The 25 punitive damages phrase is separate from the Palm Beach Reporting Service, Inc. EFTA00801224 1 main trial. 2 THE COURT: I just want to make sure we 3 are all on the same page. 4 MR. LINK: I believe we are, sir. 5 THE COURT: I believe that takes care 6 of this particular item. 7 Thank you all for your participation. 8 Let's look at item number 11, then, to 9 accommodate Mr. Goldberger. It shouldn't 10 take long. 11 Now, this is framed as a motion to 12 compel, dated February 26th of 2018. 13 Mr. Scarola, does it still remain a 14 motion to compel? 15 MR. SCAROLA: I'm sorry, Your Honor. 16 I'm switching files. 17 THE COURT: That's okay. This goes to 18 the sexual offender issues. 19 MR. VITALE: Yes, it does, Your Honor. 20 MR. SCAROLA: The reason why I couldn't 21 find my file is because Mr. Vitale is 22 handling this one. 23 THE COURT: Very well. Mr. Vitale, 24 good morning. Go ahead. 25 MR. VITALE: Your Honor, the motion to Palm Beach Reporting Service, Inc. EFTA00801225 1 compel concerns the request for admissions 2 that were propounded in February of this 3 year. 4 Excuse me one second so I can locate 5 it. 6 Your Honor, the first request for 7 admission request that Mr. Epstein admit 8 that a printout, which was attached to the 9 request for admission of his New York State 10 sex offender registration page, was 11 authentic. 12 The New York State sex offender 13 registration page contains information 14 concerning assets that Mr. Epstein was 15 required to list as part of his registration 16 of status in New York. It includes 17 multiple -- my multiple, I mean dozens of 18 vehicles and homes, and I believe one or two 19 commercial airplanes -- 20 MR. SCAROLA: Private airplanes. 21 MR. VITALE: Private airplanes. I 22 believe one might be a 747. 23 As Your Honor is aware, 1.370 is 24 routinely used by litigants to narrow the 25 issues at trial. 1.370 itself specifically Palm Beach Reporting Service, Inc. EFTA00801226 1 says that a party can use it to require a 2 party to admit the authenticity of a 3 document, as long as that document is 4 attached. 5 Mr. Epstein, in response to that 6 request for admissions, stated, "Epstein 7 cannot admit or deny this request because he 8 has no control over or personal knowledge 9 about the authenticity of the registration 10 attached to Exhibit A to Edwards's request." 11 As Mr. Scarola mentioned earlier, 12 that's impermissibly evasive. 13 To the extent that Mr. Epstein -- 14 THE COURT: Do you have a copy of it? 15 MR. VITALE: Of the request -- 16 THE COURT: Of the registration page. 17 MR. VITALE: I am sure I do, Your 18 Honor. 19 THE COURT: I didn't go to any great 20 lengths to try to locate it, but it wasn't 21 included, unfortunately, as an exhibit, as 22 it mentions in the motion. 23 MR. VITALE: I apologize, Your Honor. 24 I do not have that available with me. It 25 was a printout straight from the website Palm Beach Reporting Service, Inc. EFTA00801227 87 1 online. 2 THE COURT: It wasn't included in this 3 particular folder that was provided to me by 4 the Link and Rockenbach law firm. I don't 5 know if you supplemented it at all. 6 MR. VITALE: I didn't. I'm sure that 7 was just an oversight. 8 THE COURT: Does anybody else have a 9 copy? 10 MR. LINK: It wasn't attached. You got 11 what we got. 12 THE COURT: For example, I would like 13 to see whether Mr. Epstein signed it. Was 14 it in his handwriting? Was it typed? Does 15 it have to be signed? Does it have to be 16 signed before a notary public? I don't know 17 this. Unfortunately, I don't specialize in 18 criminal law. Some may question whether I 19 specialize in anything. 20 MR. VITALE: The answer to all those 21 questions would be no. It's not 22 handwritten. It's not signed by Mr. Epstein 23 before a notary public. It is information 24 that Mr. Epstein was required to provide as 25 part of his registration status to the New Palm Beach Reporting Service, Inc. EFTA00801228 oc 1 York government. And that information is 2 then placed on the website by an employee, I 3 believe, from New York City. 4 Now, admitting authenticity of 5 documentation does not require the party to 6 whom the request for admission is sent to 7 have personal knowledge of the contents. 8 Your Honor, I could send a request for 9 admission and attach a copy of the New York 10 Times from today and ask Mr. Epstein to 11 admit the authenticity of that document. It 12 would not be a proper objection to say he 13 didn't write the New York Times. Of course 14 he did not. Authenticity is simply is it 15 true and correct; is it reasonably 16 understood to be an accurate copy of 17 whatever it is -- whatever is attached. 18 So the answer here, based solely on 19 personal knowledge, having no -- first of 20 all, having no control is inaccurate. The 21 personal knowledge issue is not a proper 22 objection. 23 Now, requests for admissions 24 specifically state that, if you are going to 25 allege -- if you are not going to admit or Palm Beach Reporting Service, Inc. EFTA00801229 89 1 deny, you just state that you made a 2 reasonable inquiry, and no reasonable 3 inquiry here has been made. 4 More importantly, the statement that 5 Mr. Epstein has no control over the 6 information is not accurate, because it's 7 information that he provided. And that 8 distinguishes the cases that Mr. Epstein 9 relies upon. 10 And the primary case that appear to 11 be -- is a Fifth DCA case called Nationwide 12 Mutual Fire Insurance Company versus 13 Darragh, 95 So.3d 897. And in that case, 14 Your Honor, there was an admission of 15 website information where the user of the 16 website was plugging in assumptions, and the 17 website is spitting out a response based on 18 the assumptions provided. And the Fifth DCA 19 said, Well, because there's no one to 20 authenticate those assumptions or 21 authenticate the document, that's not 22 proper. 23 THE COURT: I didn't read the case. Is 24 it a defamation case? 25 MR. VITALE: I have a printout. I can Palm Beach Reporting Service, Inc. EFTA00801230 90 1 tell you. It doesn't appear to be Your 2 Honor. It was for future potential military 3 retirement benefits. That's part of the 4 plaintiff's economic damage claim. 5 But this case is different. This is 6 not a situation where the printout that 7 Mr. Epstein is being requested to 8 authenticate is a printout containing 9 assumptions that are plugged in and whatever 10 that model spits back out. This is 11 THE COURT: What you're saying is, this 12 is something that Mr. Epstein would have 13 been necessarily involved in the creation. 14 MR. VITALE: Of course. 15 THE COURT: I did find the case, by the 16 way. It's not, quote, information that's 17 been downloaded from government websites 18 concerning expected military retirement 19 benefits that would be prepared by somebody 20 else. 21 MR. VITALE: Correct, Your Honor. 22 Although the information is, obviously 23 inputted into the system by someone -- they 24 took what Mr. Epstein gave them. They put 25 it into the system, then it's displayed on Palm Beach Reporting Service, Inc. EFTA00801231 1 the New York government's website. 2 So the information that's on that 3 website is either authentic or it's not. 4 Mr. Epstein is able to answer that question. 5 And the response given is not a proper 6 response under 1.370. So that's our 7 position on number one. 8 THE COURT: All right, thank you. 9 MR. LINK: Your Honor, I don't know how 10 we can have this conversation without having 11 the document, frankly, to talk about it. 12 I also believe it's incomplete. They 13 want to attach one page. I think we are 14 both hamstrung in having this conversation. 15 Without you seeing the pages I don't know 16 how you can rule. 17 THE COURT: Well, I would like to have 18 it. I think the nature of, what I presume, 19 looking at it, it's relatively self-evident, 20 as I explained here earlier. 21 Why don't we get to the issue that I 22 think Mr. Goldberger is interested in, and 23 that is the Fifth Amendment and other 24 privileges or assertions that Mr. Epstein 25 may seek to assert as to request number two Palm Beach Reporting Service, Inc. EFTA00801232 2 1 that says, quote, Information contained in 2 the printout of the New York State sex 3 offender registration page is accurate. 4 MR. GOLDBERGER: So, without having the 5 benefit of the document and recognizing that 6 there are other objections that need to be 7 discussed with the Court about the 8 registration page, I cannot think of 9 anything more that would involve 10 Mr. Epstein's Fifth Amendment privileges 11 than asking him whether he is a sex offender 12 and whether he has pled guilty or has been 13 found guilty of a sex offense in light of 14 this side of courtroom's attempts to -- 15 through other counsel involved in the case 16 to set aside this plea agreement and subject 17 him to prosecution. 18 THE COURT: I do want to see the 19 document. I think that it is difficult for 20 me to rule without seeing the document. 21 MR. VITALE: Your Honor, we can have 22 that printed during the lunch hour. 23 THE COURT: That will be fine. If 24 there's any Fifth Amendment or other 25 privilege issues that need to be addressed, Palm Beach Reporting Service, Inc. EFTA00801233 1 we will take them up when you are available, 2 okay? 3 MR. GOLDBERGER: Thank you, Judge. I 4 appreciate you giving me the time this 5 morning and do my other stuff. 6 THE COURT: Always a pleasure to see 7 you, as well as other counsel today. 8 I have indicated to Judge Sasser that I 9 will assist her in the presentation of a 10 sidebar series that she's doing today, so I 11 think that's to begin around now. I am 12 going to excuse myself at this point and we 13 will pick up again -- I prefer to pick up at 14 1:00, if that's okay with everybody. 15 MR. SCAROLA: I heard Mr. Searcy's 16 presentation yesterday at lunch. You won't 17 be back here by 1. 18 THE COURT: I may have to respectfully 19 excuse myself to accommodate what I perceive 20 to be equally pressing matters to be here, 21 as well as to help to educate our younger or 22 less-experienced attorneys. With that in 23 mind, I am going to go ahead excuse myself. 24 (A discussion was held off the record.) 25 MR. LINK: Can I have one more second Palm Beach Reporting Service, Inc. EFTA00801234 94 1 before you leave the bench? 2 Mr. Scarola and I have conferred. I 3 think there's only one motion left to be 4 heard that we can set for 8:45 dealing with 5 changing of the caption, so as not to burden 6 the Court this afternoon or rushing your 7 lunch. 8 THE COURT: That's okay with you guys? 9 MR. SCAROLA: Yes, sir. 10 MR. LINK: And I think we can also deal 11 with the request to admit once we have the 12 documents. 13 THE COURT: And the only thing that 14 would be left for consideration would be the 15 deposition transcripts. And you promise to 16 get that to me -- 17 MR. LINK: May we have 15 to 20 days to 18 do that? 19 THE COURT: I said 20. 20 MR. LINK: Thank you. 21 THE COURT: Let's go ahead and work on 22 orders so we don't run into the same issues 23 that we run into with other cases, as 24 truncated earlier. 25 MR. LINK: We will take the labor and Palm Beach Reporting Service, Inc. EFTA00801235 1 run them by Counsel. 2 THE COURT: All right. Since you are 3 being paid by the hour, I'm sure Mr. Scarola 4 would appreciate it. 5 - - - 6 (The above proceedings were 7 concluded at 12:04 III.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Palm Beach Reporting Service, Inc. EFTA00801236 1 COURT CERTIFICATE 2 3 4 STATE OF FLORIDA ) : SS 5 COUNTY OF PALM BEACH ) 6 7 I, SONJA D. HALL, certify that I was 8 authorized to and did stenographically report the 9 foregoing proceedings and that the transcript is a 10 true record of my stenographic notes. 11 12 13 Dated this 27th day of August 2018. 14 15 16 SONJA D. HALL 17 18 19 20 21 22 23 24 25 Palm Beach Reporting Service, Inc. EFTA00801237