EFTA00801709

1 2 UNCERTIFIED TRANSCRIPT DISCLAIMER IN THE MATTER OF 3 EPSTEIN 4 v. 5 EDWARDS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801709 1 The following transcript(s) of proceedings, or any portion 2 thereof, in the above-entitled matter, taken on December 3 5th, 2017, is being delivered UNEDITED and UNCERTIFIED by 4 the official court reporter at the request of Kara 5 Rockenbach, Esquire. 6 The purchaser agrees not to disclose this uncertified and 7 unedited transcript in any form (written or electronic) 8 To anyone who has no connection to this case. 9 This is an unofficial transcript, which should NOT be 10 relied upon for purposes of verbatim citation of 11 testimony. 12 This transcript has not been checked, proofread 13 or corrected. It is a draft transcript, NOT a certified 14 transcript. As such, it may contain computer-generated 15 mistranslations of stenotype code or electronic 16 transmission errors, resulting in inaccurate or 17 nonsensical word combinations, or untranslated stenotype 18 symbols which cannot be deciphered by non-stenotypists. 19 Corrections will be made in the preparation of the 20 certified transcript, resulting in differences in content, 21 page and line numbers, punctuation and formatting. 22 This realtime uncertified and unedited transcript contains 23 no appearance page, certificate page, index or 24 certification. 25 DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801710 1 THE COURT: Good morning. Welcome 2 back. All right as I understand it, you 3 want to start with the issue of the motion 4 to amend the answer and affirmative 5 defenses. Is that accurate? 6 MR. SCAROLA: That is, sir. Yes. 7 THE COURT: I will be glad to do that. 8 I have reviewed the materials from both 9 sides. Thank you for that. 10 MR. LINK: Whenever you are ready, 11 Judge. 12 THE COURT: Whenever you are ready, go 13 ahead, sir. 14 MR. LINK: Good morning, Your Honor. 15 Scott Link on behalf of the plaintiff. It 16 is our motion for leave to amend the 17 affirmative defenses. You have to put that 18 in context, Your Honor. 19 That is, why do we need affirmative 20 defenses that sound in defamation, and they 21 do. The reason they do is because the 22 counter-plaintiff in this case has made it 23 very clear that they are trying the 24 allegations in the statements in the 25 complaint. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801711 1 At the last hearing, Mr. Scarola handed 2 this out and showed us very clearly what 3 their plan is. And this is their plan. 4 They believe that we're trying the factual 5 allegations of the complaint to see whether 6 they were true or false. 7 As this Court knows, in the recent 8 Supreme Court case dealing with this case, 9 the Supreme Court made it very clear that 10 there is a narrow exception to the 11 litigation privilege. That exception is for 12 malicious prosecution. But the Supreme 13 Court told us in that opinion Your-Honor -- 14 I will share it with the Court -- the 15 Supreme Court told us in that opinion, Your 16 Honor -- gave us a roadmap. 17 The Supreme Court told us. 18 THE COURT: That Debrincat, 19 D-E-B-R-I-N-C-A-T versus Fischer -- 20 MR. LINK: That's correct, Your Honor. 21 THE COURT: -- from the Florida Supreme 22 Court, So.3d cite that the parties are well 23 familiar with. 24 MR. LINK: If you are look at this 25 case, you will see that the Supreme Court DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801712 1 made it very clear and gave us a roadmap. 2 The Supreme Court said really simply -- and 3 it makes sense -- that if the litigation 4 privilege applied to the elements of a 5 malicious prosecution action, there would 6 never be a malicious prosecution action. 7 Plus the Supreme Court reaffirmed that 8 every statement made in the proceeding 9 itself: the allegations of the complaint, 10 the statements of witnesses, the statements 11 of lawyers, and the statements of the judges 12 are absolutely protected. That's why the 13 court lays out the elements. And the 14 elements the court lays out talk about only 15 the actual initiation of the lawsuit. 16 So if you turn, Your Honor, to page two 17 of three, the court sets forth the elements. 18 We will talk about these elements. The 19 Supreme Court really give us clarity. 20 At the bottom of the page two, it talks 21 about an original criminal or civil judicial 22 proceeding -- an original proceeding. That 23 proceeding, according to the Supreme Court, 24 when you read the Fourth DCA division that's 25 cited, is the filling, it's the DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801713 1 commencement, it's the action. 2 If you think about where this law came 3 from, it comes from the criminal system. If 4 you think about the criminal system, simply 5 issuing a warrant, starting an 6 investigation, filing a criminal complaint 7 in and of itself can cause injury to your 8 reputation. 9 So the Supreme Court tells us the act 10 that is not protected by the litigation 11 privilege is the initiation of a lawsuit. 12 If you look at the probable cause 13 element, it says there was an absence of 14 probable cause for the original proceeding. 15 It doesn't say claim. It doesn't 16 allegation. It doesn't say statement. 17 So Mr. Scarola tells us three times 18 during this hearing on the 29th that what he 19 plans to do -- what he plans to do -- 20 reading from this transcript at page 82 -- 21 the first thing Your Honor needs to 22 determine is the issue we have been focusing 23 on. What are the factual allegations that 24 we claim were maliciously prosecuted, and 25 then he goes to our complaint. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801714 1 According to the Supreme Court, our 2 complaint is protected. We cannot commit 3 defamation. We cannot commit any action 4 that's based on wrongful words. The only 5 thing that's available is a claim for 6 malicious prosecution focused on the 7 initiation of the suit. 8 On the last page of this opinion from 9 the Supreme Court, the court tells us this: 10 The filing of a lawsuit and the joining of a 11 defendant is the commencement of a judicial 12 proceeding. 13 It then says, really importantly, an 14 action for malicious prosecution which is 15 based as a matter of law on causing the 16 commencement of an original judicial 17 proceeding -- that's what we need focus on. 18 So if we are trying the statements and 19 the allegations of the complaint, if that's 20 what we are doing, then we have to have 21 affirmative defenses that protect us from a 22 claim based on allegations in the complaint. 23 The last thing I want to show the 24 Court, on Friday after our hearing, I took 25 the deposition of Mr. Edwards' expert. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801715 1 May I approach. During the deposition 2 of Dr. Jansen -- if you turn to page three, 3 four and five, Your Honor, you will see what 4 their expert wants to do. 5 The assignment was the level of 6 dissemination of defaming statements -- 7 defaming statements. That's on page three. 8 Page four. I refer to ties statement 9 associating Mr. Edwards with the illegal 10 activities of Mr. Rothstein's, the results 11 of Mr. Rothstein's lawsuits as the defaming 12 statements. 13 So what they plan to do is put on an 14 expert to demonstrate that the allegations 15 of the complaint were defaming and caused 16 damages, the defamation action. 17 There's nothing in the elements of 18 malicious prosecution that make it relevant 19 for an expert to get on the stand and talk 20 about defaming statements in the complaint. 21 In fact, to do so violates the roadmap 22 that the Supreme Court just gave us. There 23 is no better authority than Debrincat on how 24 this case should go forward. But if they're 25 going to be allowed to put an expert on to DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801716 1 talk about defaming statements, if they are 2 going to be allowed to put the allegations 3 of the complaint and test their truth or 4 falsity, which are protected by litigation 5 privilege, we then need to have affirmative 6 defenses that sounds like defamation. 7 Last point I want to point out in 8 Debrincat, Your Honor is this. It's in the 9 analysis, and it's the second sentence of 10 the analysis. Te law has long recognized 11 that judges, counsel, parties and witnesses 12 should be absolutely exempted from liability 13 to an action -- this is the key -- it 14 doesn't say to defamation -- to an action. 15 To be specific, to any action for defamatory 16 words published in the course of the 17 judicial proceeding. 18 So if we are exempted from liability 19 for the words published in the lawsuit, then 20 we don't need these affirmative defenses, 21 because they will then have to focus on 22 probable cause for the judicial proceeding. 23 But if they are going to by allowed to bring 24 in allegations of the complaint, truth or 25 falsity, then we need these affirmative DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801717 10 1 defenses. 2 Otherwise, if you look at our answer in 3 affirmative defenses, Your Honor, we don't 4 have any. The reason we don't have any is 5 we didn't raise advice of counsel. There's 6 not a statute of limitation defense. We 7 have no affirmative defenses because we are 8 defending a malicious prosecution action. 9 But we ask this Court, if this Court is 10 going to allow them to try the truth or 11 falsity of the statements in the complaint, 12 that we be allowed to amend our pleading. 13 THE COURT: You are not seeking to 14 amend to affirmatively defend on advice of 15 counsel? 16 MR. LINK: We are not, sir. They are 17 all defamation affirmative defenses. 18 THE COURT: Well, there's also the 19 constitutional affirmative defenses that you 20 are seeking to interpose dealing with the 21 petition to file against the government or 22 something along those lines. 23 MR. LINK: Those are all defamation. 24 They are all protection of speech. 25 THE COURT: I presume that falls under DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801718 11 1 that same umbrella. 2 MR. LINK: It does, Your Honor. 3 Everything that we've asked the Court to 4 allow us to amend is designed to protect our 5 record, frankly, that we believe that 6 everything in our pleading -- let me give 7 you an example. 8 The Court dismisses Mr. Edward's count 9 for abuse of process based on litigation 10 privilege. At the end of the suit when we 11 win, if we sued Mr. Scarola for malicious 12 prosecution in going forward with this case, 13 are the statements he's made in this 14 proceedings -- for example, Mr. Epstein is a 15 serial child molester -- are they protected 16 because they're part of this proceeding? Or 17 does he waive the privilege somehow because 18 we bring a malicious prosecution action? 19 This court tells us very clearly we 20 could not sue Mr. Scarola for his 21 statements. It is no purpose in the 22 malicious prosecution action. 23 But that's what this door is opening. 24 That's what they want to do. And we suggest 25 to Your Honor, we don't want to come back a DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801719 12 1 second time. We would like to try this case 2 once. We would like to focus on the 3 elements of malicious prosecution and not 4 try a defaming words case in front of the 5 jury. 6 Thank you, Your Honor. 7 THE COURT: Okay thank you, Mr. Link. 8 Who is going to arguing on behalf of 9 Mr. Edwards? Mr. Burlington? 10 MR. BURLINGTON: May it please the 11 Court. I am Phillip Burlington representing 12 Brad Edwards. 13 I have not heard anything today that 14 justifies their claim that the rights to 15 petition the government provides them an 16 affirmative defense as they allege in their 17 fifth affirmative defense. That has nothing 18 to do with defamation. We have explained 19 why it is not a defense to a malicious 20 prosecution case. Because as the US Supreme 21 Court has stated very clearly, baseless 22 litigation is not protected by the privilege 23 to engage in petitioning of the government 24 under the First Amendment. 25 I would note that even considering the DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801720 13 1 presentation here, there is not a single 2 case from any jurisdiction cited by them 3 that says that any of these defenses are 4 valid in a malicious prosecution case. Not 5 a single case. 6 They have gone so far as to site the 7 Noerr/Pennington cases, which are anti-trust 8 cases involving efforts to lobby the 9 legislative and executive branches of 10 government, and they have taken that and 11 tried to apply it to the malicious 12 prosecution case. That makes to sense. 13 Now, as to the other defenses, they 14 have also passed over two very critical 15 considerations which were not addressed in 16 their motion -- and have not been addressed 17 here, and I hope will not be addressed for 18 the first time in the rebuttal, since we 19 addressed it very squarely in our 20 response -- and that is, there are three 21 grounds to deny a motion to amend. One is 22 where the party has abused privilege. The 23 second is where the amendment would 24 prejudice the opposing party, and then the 25 third is whether the affirmative defenses DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801721 14 1 would be futile because they are legally 2 insufficient. 3 Now, in this case they've raised five 4 affirmative defenses eight years into the 5 litigation and mere weeks before of this 6 special setting that this Court had for this 7 month. 8 We pointed out in our response. There 9 was no explanation why it took them eight 10 years to dream up these affirmative 11 defenses. That is an abuse of the 12 privilege, waiting until the eve of trial, 13 after discovery is almost completely 14 concluded to raise multiple affirmative 15 defenses, many of which raise factual issues 16 that would require further discovery, 17 possibly new experts, and maybe even counter 18 pleading. Those reasons in themselves are 19 sufficient to justify denial of this motion. 20 But, I have spend more time on the 21 futility, because I certainly understand 22 that Your Honor has always expressed concern 23 that people are allowed to amend. And 24 again, we don't think that they should based 25 on the abuse of the privilege and based on DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801722 15 1 the prejudice to our client. But I will get 2 back to the legal insufficiency. 3 The argument that the Debrincat case 4 gives a roadmap is simply wrong. Debrincat 5 is not a roadmap. It is a dead end. It was 6 the determination that the litigation 7 privilege does not apply to a malicious 8 prosecution case. 9 And this is very clearly stated in the 10 paragraph preceding its conclusion. This 11 court has never held that the litigation 12 privilege protects a litigant from the claim 13 of malicious prosecution. And other 14 district courts have recognized that the 15 litigation privilege does not act as a bar 16 to a malicious prosecution claim. 17 If the Florida Supreme Court was 18 holding that it does not bar proof of the 19 first element of malicious prosecution, they 20 would have said that and said it remains in 21 force for the other elements. Clearly they 22 would not have been as categorical as they 23 were. 24 What they have done is try to parse out 25 language, again trying to make the roadmap DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801723 16 1 when it's clear this was intended to be a 2 dead end for that privilege. 3 And they talk about it's only the 4 initiation of the claim that subjects them 5 to liability. But even in Debrincat when it 6 talks about the first element, it says an 7 original criminal or civil judicial 8 proceeding against the present plaintiff was 9 commenced or continued. In this case, 10 obviously, it was continued. 11 They include the other elements, which 12 include that there was an absence of 13 probable cause for the original proceeding. 14 That means we can prove that the factual 15 allegations were false, that the legal 16 claims were invalid, as a matter of law, and 17 nothing in Debrincat precludes that. 18 It was a simple, very short decision 19 for the Florida Supreme Court. And it 20 simply said the privilege does not apply to 21 malicious prosecution claims. 22 But even putting aside Debrincat, we 23 have never had a defamation claim. We have 24 never alleged it. And they have this string 25 site of cases that talks about how, well -- DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801724 17 1 it's called the single publication rule. If 2 your cause of action is based on a 3 defamatory publication, you can't avoid 4 defenses to defamation or the statute of 5 limitations by pleading things like 6 intentional inflection of emotional distress 7 or tortious interference with business 8 relationships, so forth and so on. 9 It has nothing to do -- not a single 10 one of those cases had to do with malicious 11 prosecution. The only one that comes within 12 shouting distance is Fridovich. But in that 13 case, the Fourth District rejected the 14 malicious prosecution case, because that 15 case arose out of family allegations that a 16 family member murdered somebody, and they 17 were essentially fighting over the estate. 18 They created this conspiracy to bring 19 claims to the prosecutor to prosecute that 20 family member for murder. That family 21 member was ultimately convicted of 22 manslaughter. 23 So the Fourth District said that's not 24 a bona fide termination in your favor, so 25 they eliminate the malicious prosecution. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801725 18 1 Then they went with defamation counts and 2 related counts. It was a certified question 3 in Fridovich -- talks about defamation. 4 But they have cited no case from any 5 jurisdiction that says that you can convert 6 a malicious prosecution case into a 7 defamation case, and then raise defenses 8 that are unique to defamation cases. 9 And this reliance on the deposition 10 taken recently is nothing but -- that was 11 a -- that was an expert on damages, and 12 damages to reputation as a result of false 13 statements, which is an inherent part of a 14 malicious prosecution case. An they have 15 cited no case to the contrary. 16 THE COURT: You have cases that cite 17 affirmatively to that proposition? 18 MR. BURLINGTON: There is a case called 19 Mancusi out of the Florida Supreme Court 20 that define the elements and talked about it 21 is designed -- in fact, Debrincat says that 22 malicious prosecution is balanced between 23 allowing people to bring suits and 24 protecting the reputation of the individual. 25 So that's one -- that's the nature of DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801726 19 1 it. I mean, the fact that there are similar 2 elements of damage does not convert 3 malicious prosecution to a defamation count. 4 And they have cited no case for that 5 proposition. 6 But even if we go a little deeper into 7 these defamation claims to the defamation 8 defenses, they are clearly invalid as a 9 matter of law. 10 For example, the fifth one -- excuse 11 me. I have already addressed the fifth one. 12 The sixth one claims that Mr. Edwards 13 is a public figure. Now, as noted 14 previously, this would raise a whole new 15 factual set of issues plus perhaps the need 16 for experts. 17 But the Gertz case makes it crystal 18 clear that a private attorney representing a 19 client, despite their involvement in a 20 high-profile case, including their 21 involvement in a proceeding unrelated to 22 their civil proceeding is not a public 23 figure, that you cannot convert -- they are 24 very specific. You cannot convert a private 25 attorney representing a client into an DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801727 20 1 officer of the court to bootstrap yourself 2 into saying it's a public official. 3 And they also said in that case that we 4 are not going to hold that someone who 5 simply engages in their professional 6 activities or has involvement in the 7 community is converted to a public figure. 8 And what they have attached to their 9 motion to amend, which they claim Brad 10 Edwards made himself into a public figure is 11 nothing more than website statements on the 12 law firm where Brad Edwards worked that 13 talked about some of his cases. And that's 14 nothing more than his professional 15 responsibility and professional relationship 16 for purposes of getting clients. 17 THE COURT: Résumé. 18 MR. BURLINGTON: Excuse me? 19 THE COURT: Résumé. 20 MR. BURLINGTON: Sure. 21 And there's nothing even -- only one of 22 them mentions Epstein. 23 So they have cited no case from any 24 jurisdiction that says that a defamation 25 count can result in either a higher burden DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801728 21 1 of proof or additional affirmative defenses 2 based on the nature of the individual who 3 was sued in the baseless litigation. 4 Then their seven affirmative defense, 5 just asserts generally just as a matter of 6 public concern, and thereof we have a higher 7 burden of proof. 8 Again, this is rather late in the game 9 to start changing, not only the factual 10 issues, but the burdens of proof. But they 11 also cite no case from any jurisdiction that 12 says a malicious prosecution case is altered 13 on the basis of whether there was a matter 14 of public concern involved. 15 And here, inverting that notoriety of 16 Mr. Epstein's criminal conduct into a matter 17 public concern is somewhat of a stretch. 18 But also, in the Gertz case there was 19 notoriety in that criminal case. And Gertz 20 made it very clear that the private attorney 21 representing a client in proceedings and in 22 related proceedings, which had a lot of 23 publicity, did not convert him to either a 24 public official or a public figure, and 25 whether or not it was a matter of public DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801729 22 1 concern was not relevant. 2 The case that they seemingly rely on is 3 the Nodar case, which is a Florida case 4 where the parent went to the board of the 5 school board to speak out against a teacher 6 that he believed was no properly preparing 7 the students, not properly teaching and was 8 harassing his son. 9 That was a public forum. It was an 10 executive branch, not a judicial branch. 11 And all that the Florida Supreme Court held 12 was in that context -- because it was a 13 matter of public concern in the appropriate 14 public forum -- there was a qualified 15 privilege, and the malice would not be 16 presumed from the defamatory statements. 17 Now, again, that was a defamation suit. 18 It was nothing about malicious prosecution. 19 But as Justice Scalia noted in his 20 concurring opinion in the Kalina case, 21 malicious prosecution has the qualify 22 privilege built into it, because we have to 23 prove, not only a lack of probable cause, 24 but we have to prove malice, and we do not 25 get a presumption of malice. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801730 23 1 So that case, the Nodar case, has 2 nothing to do with either the context of 3 this case or the cause of action that we had 4 brought. 5 And they've cited, as I've said, no 6 malicious prosecution cases to support the 7 idea that any of these defenses can be 8 valid. 9 Now, as to the -- I believe it's the 10 eighth and ninth affirmative defenses, they 11 are not affirmative defenses at all. 12 Affirmative defense, as the Florida 13 Supreme Court has stated, is where a 14 defendant essentially has to admit the 15 allegations of the pleading. But say -- 16 even assuming that -- I have this defense or 17 you are limited in these matters in proving 18 your case or in your damages. 19 Their eighth affirmative defense simply 20 says this is nothing but a defamation suit. 21 That's not an affirmative defense. That is 22 a legal proposition which they rely on to 23 provide the predicate for the sixth and 24 seventh affirmative defenses, but it is 25 nothing but a statement of a legal DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801731 24 1 proposition. It is not a defense. 2 The last affirmative defense claims 3 that there are known procedures that this 4 court could put in place that could protect 5 Epstein's due process rights in the context 6 of the punitive damage claims. That's not 7 an affirmative defense. That's a 8 constitutional challenge in the proceedings 9 of this court. While III not saying they 10 can't raise constitutional challenges, it is 11 not a affirmative defense. 12 I would add, they haven't specified a 13 single thing that has happened thus far in 14 the context of punitive damages that has 15 deprived Mr. Epstein of any due process 16 rights. 17 And I gave a brief summary in our 18 response to all the protections that have 19 been established in the case law, in the 20 statutes for protecting due process rights. 21 And until and unless they come to you 22 with a colorable argument that those 23 procedures are inadequate, there's nothing 24 for you to do in response that generic 25 assertion that Mr. Epstein could never have DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801732 25 1 his due process rights protected in the 2 context of the punitive damage award. But 3 what is clear is it's not an affirmative 4 defense at all. 5 So, trying to parse out Debrincat to 6 say that the litigation privilege only 7 applies to one element of the malicious 8 prosecution claim, I submit is facially 9 wrong in light of the complaint. And if 10 they believe that Debrincat, which concludes 11 by saying unequivocally that the litigation 12 privilege does not apply to malicious 13 prosecution cases, they had an obligation 14 because they were a tag-along case. And the 15 Florida Supreme Court, after issuing 16 Debrincat, issued an order in our case 17 saying that Epstein should show cause why 18 Debrincat does not control. And in 19 response, Epstein conceded that it did 20 control. There is no to parse out anything 21 in Debrincat which would create entirely new 22 law in Florida about parsing out elements of 23 malicious prosecution for either purposes of 24 forcing the plaintiff into a position of 25 having a defamation claim or of taking out DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801733 26 1 specific elements of a malicious prosecution 2 claim and saying, oh we have defamation 3 defenses to these. 4 The falsity of the statements in the 5 complaint are entirely different from a 6 publication, because it is the act of 7 triggering the judicial mechanism forcing my 8 client to defend, litigate, expend funds. 9 And the falsity of those statements goes to 10 lack of probable cause, it goes to malice, 11 and it is an element that we can prove 12 caused harm, and we should get compensatory 13 damages. 14 Again, they cited no case. They relied 15 solely on Debrincat, and it is an extremely 16 thin read upon which to entirely change the 17 law of malicious prosecution. And I believe 18 that Your Honor should deny the motion based 19 on being untimely with no explanation. 20 None of these cases are new. Debrincat 21 is the only one that's within the last few 22 years. But they had time to raise that. 23 All the others are established law. It just 24 doesn't apply here. 25 THE COURT: Let me ask you to explain DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801734 27 1 for me, if you will, the issue of futility. 2 Because usually because of Florida's policy 3 on liberality of amendments even at trial -- 4 cases after trial that allows for amending 5 the pleadings -- the amendment is typically 6 allowed, and then the affirmative defenses 7 are attacked, traditionally by a motion to 8 strike. 9 Here your arguments on behalf of your 10 client are that these amendments are 11 essentially futile in the sense that I 12 analogize it with a cause of action brought 13 by a plaintiff in a given case where the 14 plaintiff is alleging some type of -- 15 attempting to allege some type of cause of 16 action that makes no legal sense, or it is 17 barred by the existing precedent so as to 18 make any amendments futile. 19 I would suspect that that same analogy 20 could apply here. Albeit, this is the first 21 effort, at least as to these affirmative 22 defenses, that have been made. 23 But are you suggesting that under no 24 reading of law and the facts that apply here 25 that it would be either amendable or that DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801735 28 1 any potential amendment based on these facts 2 and the law that have constituted these 3 proposed affirmative defense would be 4 futile? 5 MR. BURLINGTON: You are correct that 6 normally when affirmative defenses are 7 initially asserted in a timely fashion that 8 the means of challenging their legal 9 sufficiency is a motion to strike. 10 When a no motion to amend is 11 presented -- especially this late in the 12 game -- it would be a waste of judicial 13 resources for you to allow the amendment 14 knowing that as a matter of law those 15 defenses are invalid. 16 And there are cases -- not sure 17 they're the ones cited in our response -- 18 but I have cited case on futility where if 19 they're legally invalid, they're necessarily 20 futile. 21 And to go through the motion of 22 allowing them to amend, requiring us to move 23 to strike, allowing them to respond when the 24 legal sufficiency is addressed in these 25 memos. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801736 29 1 They cited case law in their 2 affirmative defenses themselves trying to 3 justify them. So the futility is 4 different -- not different, but the need to 5 do a motion to strike is different when the 6 amendment is made, when you come to the 7 Court and seek it to exercise its discretion 8 to allow an amendment, if it is legally 9 invalid, there's no reason for the Court to 10 allow it, because it would be futile. And 11 that's one of three ways of attacking the 12 motion to amend as discussed in all the case 13 law. 14 Otherwise, to say it would be futile, I 15 guess, we would have to get into the factual 16 analysis of where the facts don't support 17 it. But there isn't much difference between 18 saying the facts don't support it and this 19 doesn't apply as a matter of law to this 20 cause of action. 21 So I believe you are fully authorized 22 to look at the merits of these claims, which 23 have been argued in the motion and the 24 response -- and they've certainly had an 25 opportunity today to argue what they thought DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801737 30 1 was the legal validity. 2 So to simply put that off and have 3 another hearing on it when the question here 4 is, do you allow amendments which I believe 5 are clearly not valid to a malicious 6 prosecution cause of action. So I believe 7 you are authorized to do it on that basis as 8 well. 9 THE COURT: Thank you, Mr. Burlington. 10 I appreciate your written and oral 11 presentation, as well, Mr. Link. 12 MR. SCAROLA: May I add just a little 13 bit to that? 14 THE COURT: I will give you a couple 15 minutes. 16 MR. SCAROLA: Thank you very much, sir. 17 THE COURT: After Mr. Scarola, 18 Ms. Rockenbach, if you want to add something 19 you are free to do so as well. 20 MS. ROCRENBACH: Thank you, Your Honor. 21 MR. SCAROLA: I don't think that it 22 will take a couple minutes. 23 It was one aspect -- 24 THE COURT: Less than that? 25 MR. SCAROLA: Yes, sir. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801738 31 1 There was one aspect of Mr. Link's 2 argument that I found extremely confusing. 3 And maybe it's just some -- 4 MR. LINK: Your Honor, you mind if I 5 move so I can -- 6 THE COURT: Feel free. 7 MR. SCAROLA: -- some inability on my 8 part to comprehend the argument. But he 9 told us repeatedly that Edwards seeks to 10 prove the falsity of the allegations of the 11 complaint instead of proving there was no 12 probable cause to file the complaint. I 13 think he repeated that statement at least 14 three times. And quite frankly, I have no 15 idea what that means. 16 In order to prove there was no probable 17 cause to file the complaint, we must look at 18 the factual allegations in the complaint and 19 we must demonstrate that there was no 20 probable cause to file those specific 21 factual allegations. That is, we must prove 22 the factual allegations were false, and we 23 must prove that there was no reason to 24 believe that they were true. This wasn't a 25 good faith mistake. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801739 32 1 So the issues are identical. And what 2 they were attempting to do by way of this 3 motion to amend is to get right back to 4 where they were arguing last week, and that 5 is, they don't want to ever have to defend 6 against the claim that Bradley Edwards 7 fabricated false charges against Jeffrey 8 Epstein. They don't want to focus on that 9 at all. And this is one more means by which 10 to attempt to reargue that same position. 11 THE COURT: Or fabricated false claims 12 against Jeffrey Edwards (sic) or -- 13 MR. SCAROLA: Jeffrey Epstein. 14 THE COURT: Fabricated false -- 15 MR. SCAROLA: Edwards fabricated false 16 claims against Epstein. 17 THE COURT: Correct. 18 MR. SCAROLA: We will help each other 19 out with that. 20 THE COURT: Or vice versa for that 21 matter, that Epstein fabricated false claims 22 against Edwards. Meaning, I am still not 23 sure where the defendant in the malicious 24 prosecution claim, Mr. Epstein, stands as to 25 that issue, as to whether or not he's DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801740 33 1 conceding or not conceding. 2 MR. SCAROLA: That has been 3 scrupulously avoided by the other side, Your 4 Honor. They don't want to face that issue 5 or even acknowledge it exists. I agree with 6 Your Honor. 7 THE COURT: Thank you, Mr. Scarola. 8 Mr. Link, couple things that I would 9 like you to focus on. First is that -- I 10 appreciate your bringing it to my attention, 11 and I have heard this before, about the 12 punitive expert's testimony on behalf of 13 Mr. Edwards, that his research has revealed 14 whatever number of instances whereby 15 Mr. Edwards' and Mr. Rothstein's names have 16 been linked, presumably as a result of 17 Mr. Epstein's conduct. 18 MR. LINK: Yes, Your Honor. 19 THE COURT: I haven't read it very 20 closely. At this point I don't know much of 21 that testimony is going to get in. But 22 irrespective of that, what Mr. Burlington 23 has emphasized and what the Court clearly is 24 under the impression as to its utilization, 25 is not to prove up any other element of the DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801741 34 1 malicious prosecution claim, except for 2 damages. 3 For example, an affirmative defense to 4 that aspect of the claim could potentially 5 be that Mr. Edwards failed to mitigate his 6 damages by virtue of his own zeal in seeking 7 publicity for his representation of Mr. -- 8 for his representation of the alleged 9 victims and the plaintiffs in those cases 10 against Epstein, and therefore, cause much 11 of his own damages by exercising that zeal. 12 That may constitute an affirmative 13 defense as to the damage claim, because just 14 like a simple negligence action is 15 concerned, damages are a necessary element, 16 similar to the questions I had of you last 17 week when I asked what were Mr. Epstein's 18 damages as a result of his filing of the 19 initial suit against Rothstein, Edwards and 20 III. as related to factoring of those cases. 21 So, there's a distinction of importance 22 that I can see here as it pertains to the 23 affirmative defenses that have been asserted 24 as it relates to a traditional defamation 25 claim perhaps. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801742 35 1 Some of these affirmative defenses, 2 quite frankly, in handling defamation claims 3 on numerous occasions in the past, I have 4 never seen before. I never try to stifle 5 creativity. But at the same time, we have 6 to take into account, not only judicial 7 resources, but what the essential argument 8 of Mr. Burlington boiling it down to its 9 very essence is you can't fit a square peg 10 into a round hole. And that is, that the 11 bulk of these affirmative defenses, because 12 they deal with defamation, one, are not 13 pertinent. Two, even if they were, it's not 14 a defamation claim. 15 I certainly do not plan and will not 16 try a defamation claim. And also, again, 17 even if these could be conceivably construed 18 as defamation claims, they don't pass legal 19 muster. 20 Some of them, such as the affirmative 21 defense regarding the petitioning of the 22 government, has, in my view, absolutely no 23 application to this case, because if it did, 24 it would have application to any lawsuit 25 just about that I could conceive of that DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801743 36 1 would be brought by any person, by any 2 plaintiff, by any counter-plaintiff. 3 The application is completely in 4 opposite to what we're doing here. This is 5 not redressable by virtue of petition to 6 government, as are, and as were, 7 particularly at the time of those two cases, 8 Noerr and Pennington, where there were 9 issues of anti-trust violations and the 10 testing of whether or not anti-trust laws 11 were in fact being violated. And the 12 government's -- obvious because of the 13 Sherman Act -- the government is obviously, 14 because of Sherman Act, interest in 15 protecting against anti-trust violations. 16 So there was that nexus that was clearly 17 prevalent there. 18 So I really don't need further argument 19 as to the fifth affirmative defense. 20 The sixth affirmative defense deals 21 with the limited public figure. We haven't 22 really talked about that from your 23 standpoint. Your position as to that in 24 light of the Gertz decision. 25 MR. LINK: Yes. We believe that if DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801744 37 1 defamatory statements are going to be the 2 basis for liability and for damages so that 3 we're moving in absolute litigation 4 privilege from allegations in the complaint, 5 then the fact that Mr. Edwards is a quasi 6 public figure that puts himself out there, 7 that advertises, that speaks about these 8 issues, that issues press releases, talked 9 to the press, should come in as an 10 affirmative defense in this case. 11 THE COURT: How do you get around Gertz 12 essentially saying precisely the opposite, 13 that a lawyer -- even where a lawyer 14 represents a high-profile client? Here 15 these aren't high-profile clients. 16 My common sense thinking -- although 17 really not a part of the decision here -- is 18 that outside of South Florida, and had 19 Mr. Rothstein not committed the heinous 20 crimes that he's been convicted for in 21 serving a sentence somewhere in the 22 neighborhood of 50 years, Edwards would have 23 been off the radar. There would have been 24 no real issues, other than his connection 25 with Mr. Epstein. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801745 38 1 Some may argue that Mr. Epstein is far 2 more of a public figure that Mr. Edwards is 3 under the analysis you have suggested. 4 MR. LINK: He may very well be, Your 5 Honor. 6 THE COURT: But that's not the issue 7 here. I don't see how Gertz, with the plain 8 meaning of the opinion, and the fact that 9 the attorney in Gertz was in fact 10 representing a high-profile client and there 11 was afforded immunity -- which wouldn't have 12 application here whatsoever -- I don't see 13 the basic fundamental issue being answered 14 or even arguable. 15 MR. LINK: If I can take one shot at 16 it, Your Honor. 17 THE COURT: Sure. 18 MR. LINK: I think the difference is 19 the fact that you represent a high-profile 20 client does not make you a quasi public 21 figure. It's the steps and actions that you 22 take as a result of that. 23 So, the fact that the three plaintiffs 24 that Mr. Edwards represented were not 25 high-profile folks does not mean that he DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801746 39 1 didn't voluntarily put himself out there and 2 create an image and a reputation for himself 3 and put himself out there in a public way. 4 There are easy examples. I represent a 5 high-profile client, Mr. Epstein. After the 6 hearing, the press came up, I didn't talk to 7 the press. I didn't put myself out there. 8 Other lawyers will do that. They will give 9 press releases. 10 Mr. Edwards went even beyond that. He 11 used these cases to promote himself in a way 12 that goes beyond simply representing a 13 client. 14 MR. SCAROLA: Your Honor, excuse me. 15 There is no record evidence to support that 16 assertion at all. Absolutely none. 17 THE COURT: I appreciate that. Thank 18 you, Mr. Scarola. 19 You may proceed. 20 MR. LINK: So there is a distinction. 21 Simply representing a high-profile client 22 does not make you a quasi public figure. 23 But doing things that put yourself out 24 there, contacting the press, giving 25 interviews, giving speeches, making DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801747 40 1 yourself -- putting yourself out there as a 2 specialist in this particular area and 3 seeking press and accolades does. That's 4 the distinction. 5 So the fact that III representing 6 Mr. Epstein, who may be a more well-known 7 figure, doesn't mean I have done anything to 8 assert myself into the public view. That's 9 the distinction I would draw, Your Honor. 10 THE COURT: Anything else you would 11 like to speak to? 12 MR. LINK: Yes, if I can. I just want 13 to touch on a couple points that 14 Mr. Burlington made and a point Mr. Scarola 15 made. 16 Here is the key to this and these 17 affirmative defenses. And Your Honor asked 18 a great question. You asked Mr. Burlington 19 if any cases -- any of the malicious 20 prosecution cases say that you can take 21 false statement -- allegedly a false 22 statement from a complaint -- and use that 23 to demonstrate lack of probable cause or 24 damages. And he pointed to the Mancusi 25 case. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801748 41 1 Your Honor, we looked at this case last 2 time that we were here. It's a case that 3 Your Honor pointed out, I believe, that 4 talks about the mixed question of fact of 5 law and the probable cause. There's no 6 discussion of damages other than punitive 7 damages in the case. It sets forth the 8 standards that your court told us about and 9 recognized, which is, if there's no dispute 10 as to the facts that were relied on in 11 making the decision to bring a lawsuit, then 12 it's up to you. And I said Your Honor may 13 decide enough or not enough. It's your 14 call. It's not the jury's decision. That's 15 what Mancusi says. 16 There is not a case that we have 17 seen -- and we looked at about 65 -- 67 18 cases, Florida cases, that discussed that 19 you can use an allegation in the complaint 20 to either show lack of probable cause, based 21 on the truth or falsity, or use it to 22 establish damages. And here is why. 23 Mr. Burlington doesn't think that the 24 Supreme Court case answers the question, but 25 I think it does. And here is what I want to DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801749 42 1 focus the Court on. It is not, Your Honor, 2 simply the first element of the malicious 3 prosecution element that focuses on civil 4 judicial proceeding. This is from the 5 Supreme Court case. 6 Every element, if you look, an original 7 civil judicial proceeding. It doesn't say 8 count, allegation, complaint. It talks in 9 the big picture. Why? Because once the 10 lawsuit is filed, that's the damage, the 11 filing of the lawsuit, not what you plead in 12 it. That's protected by the litigation 13 privilege. 14 The present defendant was the legal 15 cause of the original proceeding. Second 16 element uses the term original proceeding. 17 Third element: Determination of the original 18 proceeding. 19 THE COURT: You think that the 20 terminology, "an original criminal or civil 21 judicial proceeding against the present 22 plaintiff was commenced or continued," seems 23 to bring in, at least arguably, more than 24 just the initial complaint? 25 MR. LINK: Yes. But the continue has DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801750 43 1 been defined very carefully. Here is what 2 the court said. The court says that 3 continued means this: One, if III a new 4 lawyer coming in, I don't have a defense if 5 there was not probable cause. 6 If I come in, don't do my homework and 7 I continue with the proceeding, that's one 8 aspect. 9 The second aspect is, I may have 10 probable cause when I start, but if during 11 the course of the lawsuit something comes to 12 my attention that makes me now conclude that 13 what I thought was true is not true, I have 14 to stop, Your Honor. I don't get to keep 15 going. But it has nothing to do with the 16 allegations of the complaint, what I say 17 during my deposition, what you say during 18 the case, what the other lawyer say during 19 the case. 20 And if you look at every one of these 21 elements -- really important to look at 22 every one of these elements, except for 23 malice. Use of the words the original 24 proceeding. 25 Six, the plaintiff suffered damage as a DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801751 44 1 result of the original proceeding. Again, 2 that's the filing of the complaint. 3 And you look at Florida's jury 4 instructions -- 5 Mr. Scarola, I don't have them, but 6 they are the standard jury instructions. 7 -- and look at damages, 406.12, Your 8 Honor, on malicious prosecution, you won't 9 see anything in there about the publication 10 of a false statement or damage caused by a 11 false statement. 12 Contrast that with defamation, which it 13 specifically says if you find that there was 14 a false statement, it's a whole different 15 standard for damages. 16 THE COURT: Again, we are going to need 17 get to that bridge when we come to it. But 18 the malicious prosecution damages state, 19 quote, if you find for defendant, you will 20 not consider the matter of damages. If you 21 find for the plaintiff, you should award the 22 plaintiff an amount of money that the 23 greater weight of the evidence shows would 24 fairly and adequately compensate him for 25 such loss, injury, damage as the greater DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801752 45 1 weight of the evidence shows was caused by 2 the institution -- and then it also 3 parenthetically states -- continuation of 4 the proceeding complained of. 5 MR. LINK: So it depends on the focus. 6 Mr. Scarola has not said -- I don't think -- 7 he has always said we're focused on the 8 initial filing. There's not probable cause 9 for the initial filing. That's what he has 10 told us. He has not said there was probable 11 cause at the beginning, Your Honor, but down 12 the road Mr. Epstein learned something and 13 he should have stopped then. 14 So based on exactly what you read, it 15 focuses on, was caused by the institution of 16 it, the filing of it. 17 THE COURT: Continuation is one of the 18 words that's utilized right there in bold, 19 black print. 20 MR. LINK: If he was arguing that it 21 was continuation to cause damages. He's 22 not. He's not, I don't believe -- unless 23 he's changed his mind. 24 THE COURT: Is that true? 25 MR. SCAROLA: No, Your Honor. It is DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801753 46 1 not true. We contend there was no probable 2 cause to initiate this proceeding, there was 3 no probable cause to continue the 4 proceeding. The initiation and continuation 5 of the proceeding caused damage to Bradley 6 Edwards, both because no probable cause ever 7 existed. So it was both initiated and 8 continued in the absence of probable cause. 9 MR. LINK: Your Honor, that only makes 10 sense. If you think what about Mr. Scarola 11 just said, if it's not probable cause when I 12 file it, and I continue with the lawsuit, 13 then there was never probable cause. 14 But the continuation isn't I filed it 15 and it should have been eliminated that day. 16 The second day after the lawsuit it's 17 already been continued. 18 THE COURT: I will give you two minutes 19 to wrap up. We had planned on 40 minutes. 20 We are now going on 55. But again, I want 21 to give both sides the opportunity -- 22 MR. LINK: I appreciate that. 23 THE COURT: I have read the materials 24 and I have heard the arguments. I don't 25 want to get into repetition. So if there's DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801754 47 1 anything you want to say to rebut 2 Mr. Burlington's argument or his written 3 presentation, feel free to do so. 4 MR. LINK: As I have handed the court 5 the Mancusi case, Your Honor, which does not 6 say anything about statements or allegations 7 in the complaint or damages other than 8 punitive damages. 9 The Supreme Court tells us that there 10 is still a litigation privilege afforded to 11 every litigant. The narrow exemption has to 12 do between when you make the decision to 13 institute -- 14 Mr. Scarola said that he sees them as 15 the same thing. They are very different. 16 One draws a line when you file the lawsuit. 17 And what's on this side of line and before 18 the lawsuit is filed is what is in your mind 19 when you make the decision. And that is not 20 protected. 21 But what you plead in the complaint, 22 and the truth and falsity of those 23 allegations is absolutely protected. And 24 that's what the Supreme Court just told us. 25 Thank you, Your Honor. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801755 48 1 THE COURT: All right. Thank you, 2 Mr. Link. The Court is prepared to rule. I 3 am going to go through it one step at a time 4 and proceed through the fifth through the 5 ninth affirmative defenses. 6 The Court finds, as far as the fifth 7 affirmative defense is concerned that the 8 pleading made here has no relationship 9 whatsoever to the case at bar. This is not 10 a forum of petitioning government for 11 redress. The Court has stated, and in 12 agreement with Edwards' position, that 13 neither Pennington nor Noerr, N-O-E-R-R, 14 have any application to this claim anymore 15 than it would have to any generic claim 16 brought by any plaintiff. 17 This is not an anti-trust case. This 18 is not a case where the government 19 involvement is either directly or indirectly 20 at issue as it relates to the affirmative 21 defense generally claiming that this is a, 22 quote, forum of petitioning government for 23 redress, end quote. It is simply 24 inapplicable. Any amendment along those 25 grounds will be futile. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801756 49 1 As far as the sixth affirmative 2 defense, the Court finds that as a matter of 3 law that the Gertz case speaks to this issue 4 broadly and specifically, and does not place 5 Mr. Edwards in the position of a general or 6 limited purpose public figure. Hence, any 7 affirmative defense that rely upon that 8 theory are, again, completely, entirely 9 inapplicable to the matters that are 10 addressed in this case. 11 The seventh affirmative defense falls 12 because of the same reason. Additionally, 13 the suggestion that in accordance with the 14 First and Fourteenth amendments of the 15 United States Constitution and Article 1, 16 Section 4 of the Florida Constitution, 17 Edwards may not recover presumed or punitive 18 damages without clear and convincing 19 evidence that Epstein knew of the falsity of 20 the claims that he made against Edwards were 21 in reckless disregard of the falsity of 22 these claims would reconstitute argument and 23 a denial, as opposed to a confession and 24 avoidance as required by Florida law so as 25 to constitute a valid affirmative defense. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801757 50 1 Again, it primarily relies on Gertz, 2 which as I found earlier, is contrary 3 directly to the position espoused by 4 Mr. Epstein. And the Gertz decision, as we 5 all know, is a United States Supreme Court 6 decision found at 418 US 323, 1974. 7 The eighth affirmative defense 8 specifically addresses defenses to a 9 defamation claim. It states, quote, 10 Edwards' claims are nothing more than 11 defamation claims which are barred by 12 defenses applicable to defamation claims as 13 set forth in the defenses above. 14 A plaintiff may not avoid defenses that 15 apply to defamation actions by 16 characterizing them as torts which are not 17 subject to those restrictions, as the court 18 pointed out in agreeing with the position 19 taken by Edwards, that is, that that is not 20 a defamation claim. This will not be tried 21 as a defamation claim. And any issues as to 22 the utilization of Mr. Edward's name in 23 print linking to Mr. Rothstein and 24 presumably -- again, I haven't read in 25 detail the proposed expert's report or DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801758 51 1 analysis, or have seen his deposition 2 transcript -- but the Court will certainly 3 be amenable to motions that may limit that 4 testimony so that we do not blur the fine 5 line between what may be construed as 6 defamation and malicious prosecution. 7 But certainly the Court understands -- 8 and was under the impression even before 9 reading the brief by Mr. Burlington -- that 10 the claims here were one of damages as it 11 relates to this -- allegedly false 12 statements or statements that linked Edwards 13 and Rothstein together, which if 14 attributable to Mr. Epstein which are 15 brought before the jury, they could 16 constitute damages. 17 So again, there's no applicability to 18 defamation. It's generic, general manner in 19 which the defense is phrased would not pass 20 legal muster as well, and any attempt to 21 amend would be futile in this Court's view 22 because of the distinction legally between 23 defamation and malicious prosecution. 24 As far as the ninth affirmative defense 25 is concerned, again, in agreement with the DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801759 52 1 position taken by Edwards, I find that the 2 built-in remedies that are already 3 established in Florida law will provide any 4 safeguards that are sought by Mr. Epstein as 5 it relates to the punitive damages. And 6 merely a recitation of the law does not 7 constitute confession or avoidance as far as 8 the Court is concerned. 9 It would be similar to saying words to 10 the effect that the rules of evidence shall 11 apply to this case. That is, that there's 12 an application of the Fifth and Fourteenth 13 amendments of the United States Constitution 14 and Article 1, Section 9 of the Florida 15 constitution guaranteeing due process. 16 In any case where punitive damages are 17 brought, those built-in due process law 18 whether decisional or statutory, 19 constitutional or otherwise -- are all built 20 in to the already existing Florida law. And 21 the ninth affirmative defense is 22 superfluous, and it would be no reason to 23 allow amendment. It's simply a statement of 24 the law and not a confession of avoidance. 25 So the Court finds, thereafter, that DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801760 53 1 each of the affirmative defenses would 2 constitute the improper affirmative defenses 3 would not be subject to amendment because of 4 futility -- the Court has addressed each of 5 these affirmative defenses in requisite 6 detail finding that they are either in 7 opposite, that they are contrary to 8 establish law and thus would be futile to 9 try to amend, particularly where I 10 referenced the Gertz decision as well as the 11 anti-trust cases that were found to be 12 completely and entirely in opposite to the 13 claims made here. 14 This is not a defamation case. It will 15 not be treated as such. It has been 16 represented in open court by Edwards' 17 counsel that any issues regarding the link 18 between Rothstein and Edwards are going to 19 be used solely for damages purposes. And 20 the Court has not been asked at this 21 juncture to limit any such testimony, but is 22 amendable to taking up any motions in that 23 regard and will treat those at such time. 24 Again, the ninth affirmative defense is 25 simply a recitation of law that is already DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801761 54 1 built in and well-known and even conceded by 2 the parties is not a confession of 3 avoidance, thus making each futile in terms 4 of attempting to amend. 5 I would ask for an order confirming the 6 Court's ruling, please, from the Edwards 7 side. 8 Anybody needs a break? 9 MR. SCAROLA: We are ready to proceed, 10 Your Honor, if the Court is ready. 11 Your Honor, we had started off last 12 week dealing with issues with respect to the 13 Fifth Amendment. Your Honor had asked us 14 to -- or we had actually volunteered to 15 specifically identify the limited questions 16 that we would wish to place before the jury. 17 We volunteered that we would identify the 18 limited questions that we wanted place 19 before the jury? 20 In light of Your Honor's statement that 21 we should be focusing only on the civil 22 claims against the three plaintiffs 23 represented by Mr. Edwards, we have done 24 that. And I want to present the Court with 25 packets that we have presented to opposing DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801762 55 1 counsel. 2 And while the package itself is thick, 3 it's only thick because we have provided 4 Your Honor with the backup information. 5 In this motion, there are specific 6 questions and answers, so that Your Honor 7 can very quickly take a look at the 8 questions that we propose to address and the 9 assertions of the Fifth Amendment in 10 response to those questions. 11 MS. ROCKENBACH: Your Honor, may I 12 respond? 13 THE COURT: Sure. 14 MS. ROCKENBACH: As I indicate to 15 Mr. Scarola this morning, he filed those 16 yesterday afternoon. And I am happy to 17 review them and go over them and present 18 argument to the Court perhaps this afternoon 19 or Thursday when we have the continuation of 20 this hearing. 21 But having received them yesterday 22 afternoon and not prepared to take them up 23 right now, I would suggest that perhaps the 24 better place to pick back up on the pending 25 motions is precisely where we left off on DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801763 56 1 November 29th, which was Exhibit 9 on 2 Mr. Edward's Exhibit list. 3 THE COURT: I am certainly more 4 prepared as well to go through that. I 5 would like to get a chance to read it. 6 As you know, I do the best I can to try 7 to read everything that comes in and 8 familiarize myself with the context. So III 9 going to sustain Ms. Rockenbach's 10 suggestion and objection to going forward 11 with this particular issue at this time. 12 Let's go back to the evidentiary 13 issues. I am also prepared to discuss, as 14 well -- and I don't know whether it's still 15 on the table -- I presume it is -- it's the 16 automatic stay issue. 17 So if there's any reason that 18 Mr. Burlington needs to be here -- because I 19 believe there's been some request that one 20 of the attorneys -- I presume to be 21 Mr. Burlington -- had to leave, which is why 22 they wanted to speak about this affirmative 23 defense issue and the denial of Epstein's 24 request to amend his answer. 25 MR. SCAROLA: Mr. Burlington, Your DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801764 57 1 Honor, does not need to be here for the 2 automatic stay issue. We wanted, for 3 purposes of conserving his time, to be able 4 to address the one matter that he would be 5 arguing today, and we have done that. 6 He may or may not be able to stay any 7 longer, but he is not required to be here 8 for the other matters. 9 With regard to going through the 10 exhibit list, I had proposed to opposing 11 counsel, and I think I managed -- I think I 12 referenced this with the Court also during 13 the hearing that I am prepared to agree that 14 I will not reference any of those specific 15 exhibits that the defense identifies as a 16 problem in opening statement. And I 17 won't -- I won't reference them with a 18 witness unless and until Your Honor has made 19 a determination that it is appropriate for 20 us to do so. 21 To go through every listed exhibit and 22 obtain from Your Honor a ruling that 23 obviously is not going to do any more than 24 what I am prepared to concede to do 25 voluntarily, respectfully doesn't make any DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801765 58 1 sense to me. I don't know why we are going 2 through this process, because the most Your 3 Honor could do would be to say, I will give 4 a preliminary indication. At such time as 5 the evidence is offered, we will make a 6 determination as to whether a predicate 7 exist to admit it or not. So III willing to 8 do that. 9 I think we are absolutely wasting our 10 time to go through the large number of 11 exhibits that you've identified for purposes 12 of getting to exactly the point where I am 13 willing to move voluntarily. 14 THE COURT: Well, couple things, and 15 that is this. We are always mindful -- and 16 I am speaking about now trial judges -- but 17 attorneys as well -- I know any good 18 attorney, such as all who are sitting in 19 this room, are certainly well aware of 20 ensuring that the jury's time is spent in an 21 efficient manner. That's why the 22 overwhelming federal case law -- because 23 Daubert we don't know if it's going to 24 remain law here in Florida -- but that's why 25 the overwhelming cases on the Daubert issue DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801766 59 1 speak to actually disallowing Daubert 2 motions, for example, from being heard 3 during the trial for the very purpose that I 4 just cited. And that is, that these folks 5 are coming in as volunteers, often 6 reluctantly, taking significant amount of 7 time away from their businesses, jobs, 8 families to be here with us, should not have 9 their time wasted if we can get done on the 10 front end what may not need to be done 11 during trial. 12 So III comfortable with going through 13 the exhibits, because there may be some 14 apparent -- at least from my vantage 15 point -- reasons why some exhibits should or 16 should not be admitted or not admitted. 17 And as I pointed out -- and you are 18 correct Mr-Scarola in your global 19 observation, that because the law, more 20 recently than in the past, has, as I earlier 21 indicated on November 29th, that the 22 appellate courts recognize what they term 23 the fluid nature of motions in limine, which 24 is essentially what we're dealing with here 25 when we talk about exhibits. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801767 60 1 The Court will have the opportunity -- 2 and should have the opportunity that if a 3 contested exhibit comes to fruition during 4 the trial to be able to either augment its 5 decision, change its mind, or confirm the 6 decision made pretrial. 7 But I disagree that it is a waste of 8 time because a lot of the arguments can be 9 made now. I can digest those arguments. I 10 won't forget, and I won't forget the context 11 of what those arguments are in relation to 12 exhibits. So I would like to proceed, as 13 recommended by Epstein's counsel, to go 14 through what we can go through. 15 We will do it in a little more of an 16 expeditious fashion, and that is, if I find 17 there's something that really does need 18 absolutely, without question, context for me 19 to make that decision, then I will indicate 20 to you that rather quickly in that regard so 21 we don't waste too much time. 22 But I think we can go through those 23 with some comfort to know at least what the 24 Court is thinking from that standpoint, 25 perhaps ruling at this point, with the DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801768 61 1 caveat that consistent with motions in 2 limine and the recognition by the appellate 3 courts -- much to my delight -- that there 4 are often situations where situations will 5 change and context is introduced to cause 6 the Court to, perhaps, vary its decision in 7 some regard. But that is afforded to me 8 once trial is underway. 9 MR. LINK: Your Honor, before we start, 10 can I take you up on your three-minute break 11 opportunity, please. 12 THE COURT: Sure. Not a problem. Take 13 a few minutes. Come on back about five 14 minutes, please. 15 (A recess was had 11:16 III. - 11:24 III.) 16 MR. SCAROLA: May I make a procedural 17 inquiry, Your Honor? 18 THE COURT: Yes. 19 MR. SCAROLA: I assume that we are 20 starting on page 23 of Jeffrey Epstein's 21 revised omnibus motion in limine. Is that 22 correct? 23 THE COURT: That's what I am 24 understanding. 25 Ms. Rockenbach? DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801769 62 1 MR. SCAROLA: That's where we left off. 2 MS. ROCKENBACH: Yes. The exhibit 3 section, which should be letter B. 4 MR. SCAROLA: Well, the specific 5 exhibits that you are objecting to are 6 identified in this motion, correct? 7 MS. ROCKENBACH: Actually, we 8 stopped -- we left off as Mr. Edwards' 9 exhibit list and we are on number nine. 10 The revised omnibus motion in limine, 11 identified examples of the objections that 12 we had. And we have listed and filed our 13 objections to the exhibit list. 14 THE COURT: Where is the list of 15 exhibits? 16 MR. SCAROLA: If you have an extra 17 copy, I need one also, please. I gave mine 18 to Sonja at the end of the last hearing. 19 And I was assuming we were going to be 20 basing this discussion on the motion. 21 MS. ROCKENBACH: Your Honor, may I 22 approach? I have a copy for Mr. Scarola. 23 It is Mr. Epstein's amended exhibit list 24 that we were reviewing. 25 THE COURT: I actually have it. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801770 63 1 Thanks. 2 MS. ROCKENBACH: You do. Okay. 3 Our objections were filed November 15. 4 That's obviously a separate document. 5 THE COURT: That I will take. 6 MR. LINK: Your Honor, they are listed 7 in the motion starting on page three. 8 THE COURT: I thought those were just 9 exemplars. 10 MR. LINK: In the omnibus motion in 11 limine, it actually lists, I think, every 12 single one of the exhibits. They are 13 identified in here. So they are in two 14 places. 15 THE COURT: Page three of the revised 16 omnibus motion in limine? 17 MS. ROCKENBACH: Your Honor, it's the 18 original omnibus -- 19 THE COURT: Is that part of the -- 20 MR. SCAROLA: If we are working with 21 the witness list -- I mean with the exhibit 22 list, we will just work with the exhibit 23 list. 24 THE COURT: Let's do that. 25 MR. LINK: That works for us, Your DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801771 64 1 Honor. 2 THE COURT: Thanks. 3 MR. SCAROLA: So I assume we are going 4 to take these one at a time? 5 THE COURT: Yeah. 6 MS. ROCKENBACH: Your Honor, the next 7 one that we were on was number nine, 8 Mr. Epstein's flight logs -- if I may 9 approach, I would like to give Your Honor 10 what was provided to my office from 11 Mr. Scarola. And it is a sampling, because 12 I think there were over 200 pages for this 13 particular exhibit. 14 We've objected basis of relevance, of 15 90.403, judicial value. And these are 16 flight logs of my client's planes. They 17 have no relevance to what is being tried in 18 this case, which is malicious prosecution. 19 Mr. Edwards testified that he knew that 20 his clients were not on my client's plane, 21 so the flight logs are completely 22 irrelevant. 23 THE COURT: Okay, Mr. Scarola. 24 MR. SCAROLA: Yes. Your Honor, one of 25 the alleged bases for Jeffrey Epstein having DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801772 65 1 concluded that Bradley Edwards was a knowing 2 participant in the Rothstein Ponzi scheme is 3 that the scope of the discovery that Bradley 4 Edwards was seeking once he became a member 5 of the Rothstein, Rosenfeldt, Adler firm 6 expanded to include matters that he was not 7 previously focusing on and which had no 8 reasonable basis to lead to the discovery of 9 admissible evidence. 10 So he alleged that the abusive 11 discovery that Bradley Edwards engaged in 12 gave him reason to believe that he was only 13 doing these things because he was knowingly 14 supporting the Ponzi scheme. 15 So Bradley Edwards obviously has an 16 opportunity to explain what he did and why 17 he did it. Yes, I was seeking discovery 18 with regard to the airplane flight logs and 19 who was on the airplane. And the reason why 20 I did that was, because even though my own 21 clients were not transported on the plane, I 22 know that other young women were transported 23 on the plane for purposes of prostitution 24 and sexual abuse. And I can prove that 25 through the flight logs that list the other DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801773 66 1 occupants on the airplane, including 2 children who were being transported by 3 Jeffrey Epstein. 4 Part of what makes this is a viable 5 federal claim is the intrastate and 6 international transportation of children for 7 purposes of prostitution. 8 The federal law, specifically federal 9 rule 41.5 -- excuse me 415.5(g) -- and I 10 referenced this in earlier argument to the 11 Court -- expressly allows the introduction 12 into evidence in any case involving a sexual 13 offense against a child, the commission of 14 any other sexual offense against a child. 15 So, I was seeking evidence to prove a 16 pattern of abuse of children including their 17 transportation for purposes of prostitution. 18 And I was doing that through flight logs 19 that identified these children, flight logs 20 that identified other witnesses, taking the 21 depositions of pilots. And so all of this 22 is information than rebuts the assertion by 23 Jeffrey Epstein that this was an abusive 24 discovery effort that supported my 25 conclusion that Bradley Edwards was a DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801774 67 1 knowing participant in the Ponzi scheme. 2 That's what he alleges. In fact, 3 portions of the deposition of Bradley 4 Edwards have already been identified by the 5 defense as their intending to introduce this 6 in evidence before the jury. 7 I have some of those excerpts, if you 8 Your Honor needs to take a look at them. 9 They are offing that evidence with regard to 10 these matters as part of their support for 11 the lack of Bradley Edwards' probable cause 12 to conduct this discovery, the assertion 13 that this was an abuse of discovery process. 14 Now, that's what they alleged in their 15 complaint. Those specific allegations are 16 included in the complaint. Those are false 17 allegations. 18 THE COURT: Show me those allegations 19 that you are suggesting? 20 MR. SCAROLA: From the complaint, Your 21 Honor, or from the deposition testimony? 22 THE COURT: Either way, or both. 23 MR. SCAROLA: Let me do both, then. 24 THE COURT: Thanks. 25 MR. SCAROLA: It's a little bit DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801775 68 1 difficult for Your Honor to see on these 2 copies what the defense has designated, but 3 on page 153 it starts at line two and 4 continues through -- it looks like the 5 bottom of that page. And then on 276, 277, 6 278 and 279, it's most of all of those 7 pages. 8 Then in the complaint, the allegation 9 in paragraph 35 -- and I will pause, if Your 10 Honor would like me to do that, while you 11 are reading that. 12 THE COURT: If you will take a moment 13 please. Thanks. 14 I don't see much as far as what is set 15 forth in the latter pages of the deposition 16 of Mr. Edwards that even mentions plane or 17 it's connection with the alleged underaged 18 individuals on that plane. 19 Let me look at the complaint. 20 Paragraph? 21 MR. SCAROLA: Thirty-three, 34, 35, 36. 22 THE COURT: Okay. This is directed to 23 primarily to Mr. Rothstein. It says "and 24 others." But it says, quote -- paragraph 25 34 -- Upon information and belief, Rothstein DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801776 69 1 and others claimed their investigators 2 discovered that there were high-profile 3 individuals onboard Epstein's private jet 4 where sexual assaults took place and showed 5 D3 -- and possibly others -- copies of a 6 flight log purportedly containing names of 7 celebrities, dignitaries and international 8 figures. 9 Remind who is D3? 10 MS. ROCKENBACH: One of investing 11 companies that was being defrauded by 12 Rothstein. 13 THE COURT: Okay. I have read those 14 other ones. Are there any other -- 15 MR. SCAROLA: Paragraph 35, Your Honor, 16 then specifically references the litigation 17 team. As you recall, the litigation team is 18 defined as including Bradley Edwards. 19 THE COURT: Thirty-five. For instance, 20 the litigation team relentlessly and 21 knowingly pursued flight data and passenger 22 manifests regarding flights Epstein took 23 with famous individuals knowing full well 24 that no underaged women were onboard and no 25 illicit activities took place. Rothstein DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801777 70 1 and the litigation team also inappropriately 2 attempted to take the depositions of these 3 celebrities in a calculated effort to 4 bolster the marketing scam that was taking 5 place. End quote. 6 There's a 40 something that was 7 mentioned? 8 MR. SCAROLA: I don't know if Your 9 Honor took a look at 36, but that's a 10 specific reference to Mr. Edwards and his 11 conduct of the discovery, and then 42(k). 12 THE COURT: Thirty-six. One of 13 plaintiffs' counsel, Edwards, deposed three 14 of Epstein's pilots, and sought the 15 deposition of a fourth pilot. The pilots 16 were deposed by Edwards for over 12 hours, 17 and Edwards never asked one question 18 relating to or about E.W., III. and Jane Doe 19 as it related to transportation on flights 20 of RRA clients on any of Epstein's planes. 21 But Edwards asked many inflammatory and 22 leading irrelevant questions about the 23 pilots' thoughts and beliefs, which could 24 only have been asked for the purposes of 25 pumping -- that word is used in quotes -- DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801778 71 1 the cases and thus by using the depositions 2 to sell the cases -- or a part of them -- to 3 third parties, end quote. 4 42(k). Told investigators, as reported 5 in an Associated Press article, that 6 celebrities and other famous people had 7 flown on Epstein's plane when assaults took 8 place. Therefore, even though none of RRA's 9 clients claim they flew on Epstein's planes, 10 the litigation team sought pilot and flight 11 logs. Why? Again, to prime the investment 12 pump, enquote, with new money without any 13 relevance to the existing claims made by RRA 14 the clients, end quote. 15 MR. SCAROLA: Our position, obviously, 16 is Your Honor, that having made those 17 specific allegations in the complaint, 18 specifically allegations that know assaults 19 took place on the plane, Mr. Epstein knew 20 that that was untrue. He knew that children 21 were being assaulted on the plane, he knew 22 that there very high-profile individuals who 23 for were present on plane. And Bradley 24 Edwards had a reasonable basis to conduct 25 this discovery pursuant to applicable DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801779 72 1 Florida law and applicable federal law as 2 well as, because it was reasonably 3 calculated to lead to the discovery of 4 admissible evidence. 5 So the flight logs are clearly relevant 6 and material for that purpose, as is all of 7 the evidence with regard to what Mr. Epstein 8 knew was occurring on those airplanes. And 9 that directly contradicts what is included 10 in this complaint as a basis for his belief 11 that Bradley Edwards was fabricating these 12 claims. 13 THE COURT: Thanks, Mr. Scarola. 14 MS. ROCKENBACH: Your Honor, may I use 15 the Elmo for a minute? 16 THE COURT: Sure. 17 MS. ROCKENBACH: I really appreciated 18 Mr. Link's presentation this morning based 19 on the law, because after the November 29th 20 hearing, I went back and I spent a good part 21 of the weekend looking at malicious 22 prosecution cases, because I thought I must 23 have missed something. I must have missed 24 something, because all I hear Mr. Scarola in 25 court saying he's going to prove that the DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801780 73 1 allegations in the original proceeding that 2 my client filed are false. And I never knew 3 that to be a malicious prosecution action. 4 But my research yielded what Mr. Link 5 indicated this morning, which is the 6 Debrincat case is the blueprint for this 7 trial. The Debrincat case actually has the 8 most guiding principle in it for this court, 9 which is going to, I think superimpose the 10 entire exhibit list of Mr. Scarola as it 11 relates to a lot of these exhibits that go 12 to one of the other lawsuits, whether it's 13 Mr. Edwards's lawsuits on behalf of the 14 three women who sued Mr. Epstein and was 15 settled in 2010 -- that case is over -- or 16 the exhibits go to one of the other 17 lawsuits. 18 The statement in Debrincat that's so 19 important is that Your Honor, Mr. Scarola 20 and I, parties and witnesses, should be 21 absolutely excepted from liability to an 22 action for defamatory words published in the 23 course of judicial proceedings. 24 So when Mr. Scarola pulls out my 25 complaint, my client's original proceeding DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801781 74 1 and wants to parse through independent 2 allegations or paragraphs and say, III going 3 to prove that that statement is false and 4 you should never pled it. That's not what 5 the malicious prosecution law says. That's 6 not what we are here to do. 7 We here for Your Honor to decide as a 8 threshold matter whether the facts that my 9 client reasonably relied on existed at the 10 time he commenced the original proceeding. 11 And, in fact, that's the Liabos case 12 that Your Honor discussed with us back on 13 November 29th, where there's a mixed 14 question of fact of law Your Honor has to do 15 that threshold determination of if there's 16 any question or dispute of those facts that 17 my client relied on were not in existence. 18 If the facts existed, then you have to 19 determine, as the Court, whether my client 20 had sufficient probable cause. 21 So what are the facts that my client 22 relied on? They are not the flight logs. 23 He's not relying on those flight logs. 24 That's a complete red herring for the Court. 25 I see why it's a focus, though, because DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801782 75 1 Mr. Scarola wants to try other cases. This 2 is not a sexual abuse case. It is not a 3 federal court action a Crime Victims' Rights 4 action. It's not even a defamation case, 5 which Your Honor clearly stated this morning 6 when denying the affirmative defense is 7 related to defamation. 8 So to allow flight logs into this 9 malicious prosecution case is completely 10 irrelevant to the issue of whether the facts 11 that my client relied on when he filed the 12 original proceeding were in existence at the 13 time that he filed it. The facts are that 14 there was a civil action forfeiture 15 proceeding against Rothstein filed with the 16 U.S. Attorney's Office, that the Rothstein's 17 firm was dissolving, that Mr. Edwards held 18 himself out as a partner in that firm, that 19 Mr. Edwards had the three lawsuits -- which 20 he even concedes in his most recent 21 deposition -- were used by Mr. Rothstein to 22 fabricate -- and that's the word that 23 Mr. Edwards testified to under oath -- to 24 fabricate -- and create a fantasy -- that 25 was another word Mr. Edwards used. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801783 76 1 Those facts, did they exist? It sounds 2 like we're in agreement. Those facts 3 existed. 4 The razorback lawsuit brought by 5 Mr. Bill Scherer down in Fort Lauderdale who 6 was quoted in a newspaper article my client 7 read and relied that said Mr. Rothstein was 8 tricking investors. He used Epstein's cases 9 as a showpiece and bait. Which Epstein 10 cases? The one that Edwards had. 11 So the flight logs are irrelevant. 12 They are far astray from what we are here to 13 try. And they are an attempt to open up 14 some other lawsuit, sexual -- 15 By the way, the three clients of 16 Mr. Edwards, Mr. Edwards concedes were 17 not -- you never heard Mr. Scarola deny 18 that -- because Mr. Edwards conceded, they 19 are not on my client's planes. 20 So this, like many of the other 21 exhibits, Your Honor must be precluded, 22 because they are wholly irrelevant. And if 23 there was any remote probative value, they 24 are prejudicial to talk about flight logs 25 and celebrities who may have been on my DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801784 77 1 client's planes. 2 THE COURT: I think that the issue 3 itself, meaning the tangential allegations 4 that were made that mentioned flight logs or 5 mentioned the good faith discovery aspects 6 of Mr. Edwards' plight relating to his three 7 clients has some relevancy. 8 However, the flight logs themselves 9 would be subject to -- and the Court is 10 sustaining at this juncture the relevancy 11 objection, and also a 403 objection. And 12 that is, that while mentioning the fact that 13 Mr. Edwards in good faith -- whatever the 14 case may have been -- sought these flight 15 logs as part of his discovery process 16 representing the three young women, at the 17 same time the Court has expressly indicated 18 its significant reservations. And in fact, 19 it's condemnation of trying either those 20 cases in this courtroom -- as far as the 21 malicious prosecution case is concerned -- 22 or more importantly that we are going to 23 potentially constructively try other either 24 underaged or over the age of consent -- 25 albeit potential sexual assault claims -- in DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801785 78 1 this forum. 2 So again, while it may become relevant 3 as to why Mr. Edwards went about his 4 business in seeking out those flight logs in 5 a matter of good faith discovery, the flight 6 logs themselves, in this Court's respectful 7 view based upon its ruling, are irrelevant. 8 And if there's any probative value at all, 9 they would be materially outweighed by the 10 prejudice of 403. 11 MR. SCAROLA: May I raise a question, 12 Your Honor? 13 THE COURT: Briefly. 14 MR. SCAROLA: Thank you. 15 Do I understand the Court's ruling to 16 be that Mr. Edwards is going to be able to 17 explain why he was seeking the discovery he 18 was seeking, why he was seeking the flight 19 logs, the fact that he did obtain flight 20 logs that confirmed independent information 21 about children being transported on the 22 airplane. 23 THE COURT: The latter is the one that 24 will have to be discussed further, again, as 25 I pointed out earlier, when the context DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801786 79 1 comes up an it's introduced or attempted to 2 be introduced outside the presence of the 3 jury. 4 To the, what I perceive to be three 5 questions, the two former questions, the 6 answer would be yes. 7 MR. SCAROLA: Will the Court take 8 judicial notice of Florida Statute 90.404 9 (2), which is commonly referred to as the 10 Williams Rule, and federal rule 415(g), 11 which expressly permits the introduction of 12 evidence with regard to other sexual 13 assaults against children, so that the jury 14 is away of the fact that Mr. Edwards, not 15 only had a good faith basis to conduct this 16 discovery, but quite arguably would have 17 been grossly negligent to have failed to 18 pursue it? 19 THE COURT: The only thing I would say 20 to that, Mr. Scarola, is I don't want to mix 21 apples and oranges. And that is, I don't 22 want to place the Court's incriminator on 23 getting too far afield and turning this into 24 a case about alleged sexual exploitation, 25 particularly of others outside of DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801787 80 1 Mr. Edwards' representation. That would 2 serve only to inflame the jury, and, again, 3 would cause the playing field to become 4 unleveled, because the defense to the 5 malicious prosecution claim, i.e., Epstein 6 and his attorneys, would have to be fighting 7 claims that they may not even know about 8 much, much less the ones that they do. 9 So again, I want to center on those 10 three claims that were brought by 11 Mr. Edwards on behalf of his clients, and 12 center on those aspects that would be 13 relevant to the malicious prosecution claim 14 and the alleged ginning up of those claims, 15 the alleged attempt to align himself with 16 Rothstein, the alleged attempt to factor 17 these cases, potentially Mr. Edwards' 18 conduct as it related to those factoring 19 matters. 20 MR. SCAROLA: I am -- I am sorry. I 21 didn't mean to interrupt. 22 THE COURT: What ■ trying to say is 23 things like flight logs, the danger of 24 unfair prejudice. And also, in -- to answer 25 your question regarding the cases that talk DRAFT ONLY! ! ! NOT PROOFREAD! ! ! EFTA00801788 81 1 about the prior similar acts or perhaps even 2 subsequent similar acts, those cases are 3 from the forum of which the actual criminal 4 claim, or perhaps even a civil claim that 5 stems from the alleged assault, is being 6 heard. 7 Again, what III trying to emphasize is 8 that I do not want to introduce tangential 9 matters into this case which would either 10 directly or indirectly, whether purposefully 11 or not, inflame this jury. 12 So that is the ruling of the Court. 13 I want to move forward now on the next 14 issue that's being objected to, that is what 15 is generically listed as Jeffrey Epstein's 16 phone records. 17 MS. ROCKENBACH: May I approach, Your 18 Honor. And I can swap with the court 19 Exhibits 10 and 9, the phone records that 20 were produced to my office by Mr. Scarola. 21 Your Honor, the objection is identical 22 to the last, and that they are not relevant. 23 My client's phone records, if there was any 24 remote relevance as to who my client may 25 have called on any given day, I don't think DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801789 82 1 that's going to be -- I think it's 2 prejudicial. I think there's a danger of 3 prejudicing this jury. 4 I am not quite sure what relevance 5 Mr. Scarola thinks that phone records have 6 to the malicious prosecution action, unless 7 they think we may hear that there is going 8 to be some attempt to prove the falsity of 9 some individual allegation in to original 10 proceeding, which is not what we should be 11 doing here in this action. 12 THE COURT: Thank you. 13 MR. SCAROLA: I am -- I continue to be 14 extremely puzzled by that statement, that we 15 are not here to prove the falsity of claims 16 in the original complaint. 17 I would like some guidance from the 18 Court. 19 THE COURT: No need to puzzled. I 20 think I've already made myself abundantly 21 clear. And that is, that the relationship 22 between the legitimacy of the three claims: 23 III., E.W. and Jane Doe, are going to be 24 permitted in a manner that befits the 25 dignity of the courtroom, without pejorative DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801790 83 1 commentary as to Mr. Epstein, nor, 2 obviously, as to the three plaintiffs at 3 issue. 4 And as conceded by Epstein in his 5 papers, once Mr. Mr. Link and Ms. Rockenbach 6 became involved to the matter, and that is 7 there's no conceivable way that those issues 8 can be ignored, because of the nature of 9 Mr. Epstein's announced defense as well as 10 his deposition testimony to the extent that 11 he testified. And that is, that these three 12 cases were a part of some type of an 13 elaborate scheme by Rothstein and others, 14 including the litigation team -- which is 15 defined as including Edwards -- to somehow 16 inflate, gin up, overexaggerate, whatever 17 the case may be, the value of those cases to 18 these investors, whatever damage was caused 19 to Epstein as a result thereof. 20 So that's the clear unadulterated 21 ruling of the Court as to that issue. 22 MR. SCAROLA: And I understand that, 23 sir. My question to you is, if there is a 24 specific allegation in the complaint -- 25 THE COURT: That was brought by DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801791 84 1 Mr. Epstein. 2 MR. SCAROLA: -- that was brought by 3 Mr. Epstein against Mr. Edwards, does Your 4 Honor's ruling contemplate that we get to 5 prove that allegation is false? Without 6 getting into what exhibit we are going to 7 use to prove its false, is there any issue 8 about the fact that if he alleged it in the 9 complaint and it's false, we get to prove 10 it's false? 11 THE COURT: There's no issue as far as 12 I am concerned. 13 MR. SCAROLA: Thank you, sir. I think 14 that helps a great deal, because I have been 15 hearing something entirely different, 16 repeatedly from the other side. I didn't 17 understand how they can possibly be making 18 that argument that we weren't permitted to 19 prove the falsity of every false allegation 20 in the complaint. 21 THE COURT: My intent is to hold 22 Mr. Epstein accountable -- as I try to do 23 each and every day, no matter whether it 24 litigant or attorney -- and that is, what 25 they write they are going to have to stand DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801792 85 1 behind. And I have got no issues in that 2 respect at all. 3 MR. SCAROLA: Thank you, sir. That's 4 very helpful. I appreciate that 5 clarification. 6 THE COURT: Now, again, the mere fact 7 that Mr. Epstein mentions flight logs in his 8 complaint does not ipso facto make the 9 entire flight log disclosure relevant to the 10 jury's consideration of the claims. 11 So I want to temper my broad statement 12 by that example as it may constitute 13 examples in other matters that he's claimed. 14 But generally, globally, yes. The 15 accountability issue is still resonating 16 with the Court, and will always resonate for 17 as long as I am doing this. 18 MR. SCAROLA: Thank you, sir. I do 19 appreciate that clarification. III sorry to 20 the extent that any of that may seem to be 21 argument after Your Honor has ruled. That 22 helps me a great deal. 23 THE COURT: Let's move on. 24 MR. LINK: Your Honor, may I comment on 25 that very, very briefly. DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801793 86 1 THE COURT: Sure. Yes, sir. 2 MR. LINK: We have heard the Court 3 ruled that way and we've accepted that 4 ruling. We don't agree that that's what the 5 law suggests, but that's the playing field 6 that you have set for us. 7 THE COURT: The playing field being -- 8 and then you don't agree is exactly what, so 9 that we can maybe clarify whatever your 10 agreement is so that neither of us or any of 11 us are working under any false pretenses. 12 MR. LINK: Your Honor, we don't believe 13 that truth or falsity of any specific 14 allegation has anything to do with malicious 15 prosecution. It has everything to do with 16 defamation. Here is why. 17 We believe that malicious prosecution 18 focuses on the information that you make the 19 decision to go forward with the lawsuit. 20 Did you have enough information that a 21 reasonable person would bring this civil 22 proceedings. That's what the case law says. 23 THE COURT: How else is that testing, 24 Mr. Link, but for the actual allegations 25 that were brought? DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801794 87 1 Someone could be conjuring up any 2 thought process that they may have to 3 possibly bring a claim. But it's not until 4 that black and white document is served on 5 someone and a filing fee is paid, and the 6 litigation commences -- and as contemplated 7 by the jury instructions and by the law -- 8 continued by the defendant in a malicious 9 prosecution claim, the original plaintiff, 10 to make this at all real. 11 MR. LINK: I think I can answer that 12 question very easily, and here is why -- and 13 you raise a really good point. 14 You, Mr. Scarola absolutely gets to 15 test this. So here is when is Epstein's 16 complaint is file, December 7th, 2009. I am 17 suggesting to you that if you read the 18 Supreme Court case that just came out, it 19 will tell you what happens afterwards is all 20 subject to the litigation privilege. 21 THE COURT: Which Supreme Court case 22 you are talking about? 23 MS. ROCKENBACH: Debrincat. 24 MR. LINK: It's the first thing it 25 says -- DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801795 88 1 MS. ROCKENBACH: Under headnote one. 2 MR. LINK: -- that everything that 3 happens after 12/7/09 is protected, it's 4 subject to privilege. What the allegations 5 are, the truth or falsity, any statements 6 made by the lawyers, any statements made by 7 the parties or witnesses. 8 THE COURT: Hold on just a moment. 9 What about, though, extra judicial 10 statements? The Debrincat case, the Wolfe 11 case, for case that we had, was confined to 12 issues dealing with the litigation itself. 13 The concern that Wolfe had was 14 primarily one of chilling effect on the 15 ability of, in that case, a rather 16 well-known law firm in Miami and their 17 ability to properly litigate their case 18 without feeling -- feeling feathered by 19 that. 20 What transpires outside of the 21 litigation are you suggesting to me would 22 not be relevant, meaning publication, things 23 of that nature, things that this expert is 24 going to say in terms of damages caused to 25 Edwards as a result of this filing and it's DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801796 89 1 continuation. 2 MR. LINK: We are on two different 3 points then. 4 THE COURT: Sorry. I may have 5 misunderstood. 6 MR. LINK: You got it, but you are on 7 two different points, so let me tell you 8 this. 9 The extra judicial statements -- and 10 it's a great example. Epstein sues for 11 abuse of process, RICO, whatever he sues 12 for. Outside of the courtroom Mr. Epstein 13 stands up and says to a reporter, 14 Mr. Edwards is a thief. There's no part of 15 that statement that's connected to the 16 litigation. He doesn't have immunity. 17 He makes a statement about the 18 litigation, and he says, I have alleged 19 Edwards was connected to Rothstein's Ponzi 20 scheme. He says it outside of the 21 courtroom. Is that connected to the 22 litigation? Yes, it is. 23 So I don't think the law is unclear at 24 all. And I don't think Mr. Scarola would 25 dispute it if you asked him does the DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801797 90 1 litigation privilege protect everything that 2 happens in a lawsuit through parties, 3 witnesses, lawyers and Judges that are 4 connected to the litigation. He would say, 5 in any other circumstance -- he said it in 6 this room -- he said it in this courtroom 7 two or three times -- all of that is 8 protected by the litigation privilege. 9 MR. SCAROLA: No. There is one 10 exception. And the one exception is 11 continuing to maintain the lawsuit in the 12 absence of probable cause. That's one 13 exemption. Everything else is protected by 14 the litigation privilege. The one thing 15 that is not, the one exemption carved out of 16 the litigation privilege by every court, up 17 until the Third DCA decided otherwise, and 18 the Fourth DCA issued its opinion, every 19 other court in the nation has said you 20 cannot maintain a lawsuit in the absence of 21 probable cause. You can't file it in the 22 absence of probable cause. 23 THE COURT: You're bringing back bad 24 memories. If I heard that once, I heard it 25 a thousand times. I think that's why Judge DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801798 91 1 Warner went out of our -- very kind way -- I 2 am saying that with an abundant amount of 3 respect. I think she's an exceptional 4 appellate judge -- she stated that the trial 5 court correctly followed the Wolfe decision. 6 Off the record. 7 (A discussion was held off the record.) 8 THE COURT: I do need a break. I hate 9 to break you in the middle of a thought, but 10 I do have some lunch plans. I want to make 11 sure that I respect those. It's about five 12 or so after noon. Let's get back, please, 13 assembled at 1:20. 14 What my plan is, III going to give you 15 another two hours this afternoon. So we 16 will go whenever we start and two hours 17 thereafter. 18 What I would like to do is try to get 19 through as much of this as we can. 20 My continued suggestion is to work with 21 each other, if you can, as far as any of 22 these exhibits may be concerned. And then 23 what I will do is -- if you are prepared to 24 do it -- is get into the motion to stay if 25 we have time to do that today, okay? DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801799 92 1 MR. GOLDBERGER: Judge, I apologize. 2 So III kind of responsible for the stay 3 motion, and III juggling a couple of balls 4 right now. III not going to be here this 5 afternoon. I got called up for trial. I 6 have to go prepare for that. 7 On a personal level, my son and 8 daughter-in-law their due date is today. I 9 think it's happening so -- 10 THE COURT: If you would have told me 11 that, I would have been able to hear it 12 before we did this evidence issue, because I 13 think I mentioned earlier that I was prepare 14 to do this today. 15 You know, my suggestion is probably 16 that either Mr. Link or Ms. Rockenbach could 17 argue it in your absence. 18 I will be glad to take it up the first 19 thing this afternoon, Jack, if it will help 20 you. But, you know -- 21 MR. GOLDBERGER: I apologize for not 22 telling you ahead of time. 23 THE COURT: I understand. You have a 24 lot on your mind and I respect that. But at 25 the same time, I told the parties before, DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801800 93 1 you know, I am slammed, and I have to get 2 this stuff pushed through in the best way I 3 can describe it. So III going to have to 4 insist that you make yourself available. 5 I will willing to do it, as I said, 6 first thing out of the gate. I don't expect 7 it to take very long. III expecting it to 8 be about a 15-minute argument per side. And 9 I will get you out of here, to to best of my 10 ability, by 2:00 in the afternoon, as long 11 as there's no unforeseen circumstance. 12 MR. GOLDBERGER: Let me talk to 13 co-Counsel. 14 MR. SCAROLA: I can do my argument in 15 five minutes on that issue. 16 THE COURT: I don't think it's going to 17 take more than 15 minutes to present, then 18 five on the rebuttal. So III telling you 19 right now, we can' get it done in less than 20 half an hour. I will be glad to that. I 21 will give every you every accommodation, as 22 I would with any of you here. I would do 23 the same thing. 24 But I need to respect the fact that 25 I've put aside this time, and that I've DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801801 94 1 prepared in accordance with the information 2 that I received from counsel yesterday in 3 the manner which puts that as the next -- as 4 the next viable thing to review and -- I 5 haven't gone through the supplement motions 6 to compel yet. That is what I was planning 7 to do on Thursday. 8 • sorry about that. Again, it is 9 with all due respect to your long experience 10 and the fact I think you're an excellent 11 lawyer and a great person, so it's not 12 personal at all, it's just needing to get 13 this done. 14 Thank you. And thank you all for 15 understanding. I appreciate that. See you 16 back assembled at 1:20. 17 (A recess was had 12:09 III. - 18 19 20 21 22 23 24 25 DRAFT ONLY!!! NOT PROOFREAD!!! EFTA00801802