EFTA01100999

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff, vs. SCOTT ROTI [STEIN, individually, BRADLEY J. EDWARDS, individually, and L.M., individually, JUL 1 9 2011 Defendants. MOTION FOR LEAVE TO AMEND TO ASSERT A CLAIM FOR PUNITIVE DAMAGES Defendant, Bradley J. Edwards, Esq., by and through his undersigned counsel and pursuant to Rule 1.190(f), Florida Rules of Civil Procedure, hereby moves for leave to amend to assert a claim for punitive damages, and in support thereof relies upon the following evidence in the record and such additional evidence as is herein proffered*: I. INTRODUCTION The pleadings, discovery taken to date, and the evidence proffered with this motion show that a reasonable basis exists to support the recovery of punitive damages against the Counter- Defendant, Jeffrey Epstein. Not only is there an absence of competent evidence to demonstrate that Edwards participated in any fraud against Epstein, the evidence uncontrovertibly demonstrates the propriety of every aspect of Edwards's involvement in the prosecution of legitimate claims against Epstein and the fact that the sole basis for the assertion of the spurious claims filed against Edwards was an attempt to intimidate Edwards into abandoning EFTA01100999 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 2 of 27 the legitimate claims Edwards was prosecuting against Epstein on behalf of victims of Epstein's pattern of criminal sexual abuse of minors. Epstein sexually abused three clients of Edwards — L.M., E.W., and Jane Doe — and Edwards properly and successfully represented them in a civil action against Epstein. Nothing in Edwards's capable and competent representation of his clients could serve as the basis for a civil lawsuit against him. Allegations about Edwards's participation in or knowledge of the use of the civil actions against Epstein in a "Ponzi Scheme" were not supported by any competent evidence and could never be supported by competent evidence as they are entirely false and Epstein never had any reason to believe otherwise. The dismissal of the unsupported, unsupportable and sensational allegations that Edwards was a knowing participant in a massive criminal fraud and the subsequent abandonment of those allegations is further confirmation that no reasonable basis ever existed to support any belief in the truth of those allegations. A. Epstein's Complaint Epstein's Complaint essentially alleged that Epstein was defrauded by Edwards, acting in concert with L.M. (a minor female who was sexually abused by Epstein) and Scott Rothstein (President of the Rothstein Rosenfeldt Adler law firm ("RRA") where Edwards worked for a short period of time). Epstein appears to have alleged that Edwards joined L.M. and Rothstein in fabricating sexual assault cases against Epstein to "pump" the cases to Ponzi scheme investors. As described by Epstein, investor victims were told by Rothstein that three minor girls who were sexually assaulted by Epstein: LM., E.W., and Jane Doe were to be paid up-front money to prevent those girls from settling their civil cases against Epstein. In Epstein's view, these child sexual assault cases had "minimal value" (Complaint at 42(h)), EFTA01101000 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 3 of 27 and Edwards's refusal to force his clients to accept modest settlement offers was claimed to breach some duty that Edwards owed to Epstein. Interestingly, Epstein never states that he actually made any settlement offers. Even more interesting, all of the allegations of Edwards' knowing involvement in Rothstein's fraud disappeared from Epstein's first Amended Complaint along with the claims for civil remedies for criminal conduct and Florida RICO violations. This is a clear admission that no probable cause existed to support any of those allegations and claims to begin with. The supposed "proof of the Complaint's allegations against Edwards includes Edwards's alleged contacts with the media, his attempts to obtain discovery from high-profile persons with whom Epstein socialized, and use of "ridiculously inflammatory" language in arguments in court (Complaint at 42(e)). Remarkably, Epstein has filed such allegations against Edwards despite the fact that Epstein had sexually abused each of Edwards's clients and others while they were minors. Indeed, in recent discovery Epstein has asserted his Fifth Amendment privilege rather than answer questions about the extent of the sexual abuse of his many victims. Even more remarkably, since filing his suit against Edwards, Epstein has now settled the three cases Edwards handled for an amount that Epstein insisted be kept confidential. Without violating the strict confidentiality terms required by Epstein, the cases did not settle for the "minimal value" that Epstein suggested in his Complaint. Because Epstein relied upon the alleged discrepancy between the "minimal value" Epstein ascribed to the claims and the substantial value Edwards sought to recover for his clients, the settlement amounts Epstein voluntarily agreed to pay while these claims against Edwards were pending will be disclosed to the court in camera. Of course, those false allegations have also now disappeared from the EFTA01101001 Case No. 502009CA0408007OOOCMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 4 of 27 most recent Amended Complaint, but the amendment does not erase the fact that the baseless allegations were made. B. Summary of the Argument The claims against Bradley J. Edwards, Esq., were patently frivolous for at least two separate reasons. First, because Epstein has elected to hide behind the shield of his right against self incrimination to preclude his disclosing any relevant information about the criminal activity at the center of his claims, he is barred from prosecuting this case against Edwards. Under the well-established "sword and shield" doctrine, Epstein cannot seek damages from Edwards while at the same time asserting a Fifth Amendment privilege to block relevant discovery. The filing of a case seeking affirmative relief when there was no intention at the time of filing to comply with the discovery obligations arising from such filing is compelling evidence that the case was filed for reasons unrelated to obtaining the relief specified in the Complaint. Second and most fundamentally, Epstein's lawsuit was never supported by probable cause to believe any of the spurious accusations on which it was based, each and every one of which is directly contradicted by all of the record evidence. From the beginning, Edwards diligently represented three victims of sexual assaults perpetrated by Epstein. As explained in detail below, all of Edwards's litigation decisions were grounded in proper litigation judgment about the need to pursue effective discovery against Epstein, particularly in the face of Epstein's stonewalling tactics. Edwards's successful representation finally forced Epstein to settle and pay appropriate damages. Effective and proper representation of child victims who have EFTA01101002 Case No. 502009CA0408002OOOUvIBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 5 of 27 been repeatedly sexually assaulted cannot form the basis of a separate, "satellite" lawsuit, since even improper conduct in the course of the prosecution of a lawsuit may not form the basis of a separate claim by virtue of the absolute bar of the litigation privilege. Filing a claim known to be barred by absolute privilege is further evidence that the claim was filed for reasons other than in a legitimate effort to obtain the relief sought in the Complaint. The truth is the record is entirely devoid of any evidence to support Epstein's claims and is completely and consistently corroborative of Edwards's sworn assertion of innocence. Put simply, Epstein made allegations that had and have no basis in fact. He included those allegations in a lawsuit that was and is barred by both the sword-shield doctrine and the absolute litigation privilege. His lawsuit was merely a desperate measure by a serial pedophile to prevent being held accountable in compensatory and punitive damages for repeatedly sexually abusing minor females. He was trying also to shut down an investigation effort by Edwards that threatened to expose him to more criminal charges and harsher penalties. Epstein's ulterior motives in filing and prosecuting this lawsuit are blatantly obvious. Epstein's behavior is another clear demonstration that he feels he lives above the law and that because of his wealth he can manipulate the system and pay for lawyers to do his dirty work - even to the extent of having them assert baseless claims against other members of the Florida Bar. Epstein's Complaint against Edwards and LM is nothing short of a far-fetched fictional fairy-tale with absolutely no evidence whatsoever to support his preposterous claims. It was his last ditch effort to escape the public disclosure by Edwards and his clients of the nature, extent, and sordid details of his life as a serial child molester. EFTA01101003 Case No. 502009CA040800XXXXMBAG Edwards Motion for leave to Amend To Assert a Claim for Punitive Damages Page 6 of 27 ARGUMENT IL THE PROFERRED FACTS ESTABLISH THAT EDWARDS'S CONDUCT COULD NOT POSSIBLY FORM THE BASIS OF ANY LIABILITY IN FAVOR OF EPSTEIN This is not a complicated case for punitive damages because there is compelling and unrebutted evidence that each and every one of Epstein's claims against Edwards lacks any merit whatsoever. A. Edwards Was Simply Not Involved in the Rothstein Ponzi Scheme. The bulk of Epstein's claims against Edwards hinged on the premise that Edwards was knowingly involved in a Ponzi scheme run by Scott Rothstein. For example, Epstein alleged generally that "Edwards's... actions constitute a fraud upon Epstein as [Rothstein, Rosenfeldt, and Adler], [Scott] Rothstein and the Litigation Team represented themselves to be acting in good faith and with the best interests of their clients in mind at all times when in reality, [Edwards was] . . . acting in furtherance of the investment or Ponzi scheme described herein." Complaint ¶50. Similar broad allegations are scattered willy-nilly throughout the Complaint, although none of the allegations provide any substance as to how Edwards might have assisted the Ponzi scheme. See, e.g., id at TT 23, 24, 5, 27, 28, 42, 50. In any event, these allegations all fail for one straightforward reason: Edwards was simply not involved in any Ponzi scheme. He has provided sworn testimony and an affidavit in support of that assertion, and there is not (and could never be) any credible contrary evidence. Edwards has now been deposed at length in this case. As his deposition makes clear, he had no knowledge of any fraudulent activity in which Scott Rothstein was involved. See, e.g., Edwards Depo. at 301-02 (Q: " . . . [W]ere you aware that Scott Rothstein was trying to market Epstein cases ... ?" A: "No."). EFTA01101004 Case No. 502009CA040800>OCXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 7 of 27 Edwards has supplemented his deposition answers with an Affidavit that declares in no uncertain terms his lack of involvement in any fraud perpetrated by Rothstein. See, e.g., Edwards Affidavit attached to Statement of Undisputed Material Facts as Exhibit "N" at 18-10, ¶20, 122-23. Indeed, no one could reasonably believe that Edwards was involved in the scheme, as Edwards joined RRA well after Rothstein began his fraud and would have been already deeply in debt. In fact, the evidence of Epstein's crimes is now clear, and Edwards's actions in this case were entirely in keeping with his obligation to provide the highest possible quality of legal representation for his clients to obtain the best result possible. In view of this clear evidence rebutting all allegations against him, Epstein must at least establish that he had a good faith basis to support his untrue allegations. By choosing to assert his Fifth Amendment privilege to remain silent, he obviously fails to meet that burden. Indeed, when asked at his deposition whether he had any evidence of Edwards's involvement, Epstein declined to answer, purportedly on attorney-client privilege grounds: Q. I want to know whether you have any knowledge of evidence that Bradley Edwards personally ever participated in devising a plan through which were sold purported confidential assignments of a structured payout settlement?... A. I'd like to answer that question by saying that the newspapers have reported that his firm was engaged in fraudulent structured settlements in order to fleece unsuspecting Florida investors. With respect to my personal knowledge, I'm unfortunately going to, today, but I look forward to at some point being able to disclose it, today I'm going to have to assert the attorney/client privilege. See Deposition of Jeffrey Epstein, Mar. 17, 2010 (hereinafter "Epstein Depo.") at 67-68. EFTA01101005 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 8 of 27 B. Epstein Did Not Suffer Any Hann from Allegedly Fraudulent Presentations to Investors. At various points in his Complaint, Epstein seems to have alleged that he can pursue a claim against Edwards because Rothstein defrauded third-party investors. Epstein alleges that various investors were given fraudulent pitches by Rothstein and were bilked out of money as a result. See, e.g., Complaint I 28, 29, 30. Even assuming that the allegations about Rothstein are true (and they certainly are not challenged by this Motion), Edwards is still obviously entitled to assert a claim for punitive damages for the additional reason that Epstein was not harmed by these fraudulent pitches and had no plausible basis to claim that he was. Epstein was obviously not present during these presentations. Indeed, as review of Epstein's Complaint makes clear, he did not even know about the fraud until it became public knowledge through the mass media. See, e.g., Complaint 116 ("The details of this fraudulent scheme are being revealed on a daily basis through various media report and court documents."). To proceed on any cause of action, Epstein is required to prove harm. See, e.g., Borten v. White Mountains Ins. Group, Ltd., 2 So.3d 1041, 1047 (Fla. 4'h DCA 2009); S & Investments v. Payless Flea Market, Inc., 36 So.3d 909, 917 (Fla. 4'h DCA 2010). Epstein was not harmed by Rothstein's misrepresentations to other people that he knew nothing about. C. Epstein's Allegations Against Edwards Were and Are Unfounded and Not Actionable in Any Event. At various points in his Complaint Epstein inconsistently recognized that Edwards was not involved in any Rothstein Ponzi scheme. Therefore, seemingly as a fallback, Epstein alleged without explanation that Edwards "should have known" about the existence of this concealed EFTA01101006 Case No. 502009CA0408007OOaMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 9 of 27 Ponzi scheme. For example, in his Complaint Epstein alleged: "Upon information and belief, Edwards knew or should have known Rothstein was utilizing RRA as a front for the massive Pont scheme . . . ." Complaint at 26 (emphasis added). Among other problems, this fallback negligence position suffered the fatal flaw that it does not link at all to the five counts in the complaint, all of which alleged intentional fraud or conspiracy. The five counts in the Complaint all allege criminal — i.e., intentional — activity. The five counts are: Count I — Florida Civil Remedies for Criminal Practices Act (FCRCPA); Count 2 — Florida RICO; Count 3 — Abuse of Process; Count 4 — Fraud; and Count 5 — Conspiracy to Commit Fraud. To take Count 1 as an example, Epstein alleges that Edwards "engaged in a pattern of criminal activity as defined in §772.102(3) and (4), Fla Stat. (2009)." Epstein then alleges (without any elaboration) that Edwards committed such crimes as fraud, extortion, and perjury — crimes that are listed as actionable under the FCRCPA. See Fla. Stat. Ann. §772.102(1)(a). Crimes such as these require proof of criminal intent. Proving the crime of perjury, for example, requires proof that "testimony was in fact false testimony, and that [the defendant] knew of its falsity and willfully and with deliberation swore to it as true." Rader v. State, 52 So.2d 105, 108 (Fla. 1951) (emphasis added). Proving the crime of fraud requires proof that the defendant acted with "intent to defraud" Pizzo v. State, 455. So.2d 1203, 1207 (Fla. 2006) (emphasis added); see also Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 2010 WL 2400384 at *15 (describing fraud, conversion, civil theft, and abuse of process as "intentional torts" that require "proof of intent"). Moreover, not only do the underlying crimes require proof of criminal intent, but the FCRCPA itself requires proof that a defendant must have acted "with criminal intent," Fla. Stat. Ann. §772.103(1), or "conspire[d]," §772.103(4), in EFTA01101007 Case No. 502009CA040800XXXXMEBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 10 of 27 order for a cause of action to proceed. Nothing in the statute allows a claim to move forward on a mere allegation of negligence. Epstein's negligence claim is also deficient because it simply fails to satisfy the requirements for a negligence cause of action: "Four elements are necessary to sustain a negligence claim: 1. a duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks. 2. A failure on the [defendant's] part to conform to the standard required: a breach of the duty ... . 3. A reasonably close causal connection between he conduct and the resulting injury. This is what is commonly known as 'legal cause,' or 'proximate cause,' and which includes the notion of cause in fact. 4. Actual loss or damage." Curd v. Mosaic Fertilizer, LW, 39 So.3d 1216, 2010 WL 2400384 at *9 (Fla. 2010). Epstein does not allege a particular duty on the part of Edwards that has been breached. Nor does Epstein explain how any breach of the duty might have proximately caused him actual damages. Finally, for the sake of completeness, it is worth noting briefly that no reasonable basis existed to claim Edwards was negligent in failing to anticipate that a managing partner at his law firm would be involved in an unprecedented Ponzi scheme. Scott Rothstein deceived not only Edwards but also more than 60 other reputable lawyers at a major law firm. Cf . Sun Sentinel, Fort Lauderdale, Dec. 11, 2009, 2009 WLNR 25074193 at *1 ("Sure, some outlandish John Grisham murder plot[s] sound far-fetched. But if you asked me a few months ago if Scott Rothstein was fabricating federal court orders and forging a judge's signature on documents to allegedly fleerte his friends, as federal prosecutors allege, I would have said that was far-fetched, too."). No reasonable lawyer could have expected that a fellow member of the bar would have been involved in such a plot. Nobody seemed to know of Rothstein's Ponzi EFTA01101008 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 11 of 27 scheme, not even his best friends, or the people he did business with on a daily basis, or even his wife. Many of the attorneys at RRA had been there for years and knew nothing. Edwards was a lawyer at RRA for less than eight months and had very few personal encounters with Rothstein during his time at the finn, yet Epstein claims that he should have known of Rothstein's intricate Ponzi scheme. No doubt for this reason the U.S. Attorney's Office has now listed Edwards as a "victim" of Rothstein's crimes. See Statement of Undisputed Facts filed contemporaneously. Epstein's Complaint does not offer any specific reason why anyone could conclude that Edwards was negligent, and he chose not to offer any explanation of his claim at his deposition. D. Edwards Was Properly Pursuing the Interests of His Three Clients Who Had Been Sexually Abused by Epstein. The next claim that Epstein advances is that Edwards somehow improperly enhanced the value of the three civil cases he had filed against Epstein. Edwards represented three young women — L.M., E.W., and Jane Doe — by filing civil suits against Epstein for his sexual abuse of them while they were minors. Epstein purports to find a cause of action for this by alleging that Edwards somehow was involved in "'pumping' these three cases to investors." Complaint at 1151; see also id. at11136, 41, 42(f), 42(k) (similar allegations of "pumping" the cases). As just explained, to the extent that Epstein is alleging that Edwards somehow did something related to the Ponzi scheme, those allegations fail for the simple reason that Edwards was not involved in any such scheme. Edwards, for example, could not have possibly "pumped" the cases to investors when he never participated in any communication with EFTA01101009 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 12 of 27 investors as has now been confirmed under oath not only by Edwards but by every investor deposed by Epstein. Epstein's "pumping" claims, however, fail for an even more basic reason: Edwards was entitled — indeed ethically obligated as an attorney — to secure the maximum recovery for his clients during the course of his legal representation. As is well known, "[a]s an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system." Ha. Rules of Prof. Conduct, Preamble. Edwards therefore was required to pursue (unless otherwise instructed by his clients) a maximum recovery against Epstein. Edwards, therefore, cannot be liable for doing something that his ethical duties as an attorney required nor can he be liable for conduct that falls squarely within the absolute protection of the litigation privilege. See the Fla. S. Ct.'s opinion in Echevarria attached. Another reason that Epstein's claims that Edwards was "pumping" cases for investors fails is that Edwards filed all three cases almost a year before he was hired by RRA or even knew of Scott Rothstein. Epstein makes allegations that the complaints contained sensational allegations for the purposes of luring investors; however, language in the complaints remained virtually unchanged from the first filing in 2008 and from the overwhelming evidence the Court can see for itself that all of the facts alleged by Edwards in the complaints were true. Epstein ultimately paid to settle all three of the cases Edwards filed against him for more money than he paid to settle any of the other claims against him. At Epstein's request, the terms of the settlements were kept confidential, but the Stipulation and Order of Dismissal in each of the cases required Epstein to bear all costs and fees incurred in his defense, thus precluding him from claiming those costs and fees as damages in any action against Edwards. EFTA01101010 Case No. 502009CA0408007OOCXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 13 of 27 The sum that he paid to settle all these cases is not filed with this pleading and will be provided to the court for in camera review. Epstein chose to make this payment as the result of a federal court ordered mediation process, which he himself sought (over the objection of Jane Doe, Edwards's client in federal court) in an effort to resolve the case. See Defendant's Motion for Settlement Conference, or in the Alternative, Motion to Direct Parties back to Mediation, Doe v. Epstein, No. 9:08-CV-80893 (S.D. Fla. June 28, 2010) (Marra, J.) (doe. #168) attached hereto as Exhibit "A". Notably, Epstein sought this settlement conference — and ultimately made his payments as a result of that conference - in July 2010, more than seven months after he filed this lawsuit against Edwards. Accordingly, Epstein could not have been the victim of any scheme to "pump" the cases against him, because he never paid to settle the cases until well after Edwards had left RRA and had severed all connection with Scott Rothstein (December 2009), and the scope of the Rothstein fraud was fully exposed.' In addition, if Epstein had thought that there was some improper coercion involved in, for example, Jane Doe's case, his remedy was to raise the matter before Federal District Court Judge Kenneth A. Marra who was presiding over the matter. Far from raising any such claim, Epstein simply chose to settle that case. He is therefore now barred not only by the litigation privilege but also by the doctrine of res judicata from somehow re-litigating what happened in (for example) the Jane Doe case. "The doctrine of res judicata makes a judgment on the merits conclusive 'not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action." AMEC Civil, LLC v. State Dept of Transp.,41 To further his effort to harass and intimidate Edwards, Epstein also filed a bar complaint with the Florida Bar against Edwards. The Florida Bar has dismissed that complaint. See Statement of Undisputed Facts. EFTA01101011 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 14 of 27 So.3d 235, 2010 WL 1542634 at *2 (Fla. V' DCA 2010) (quoting Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla. 1984). Obviously, any question of improper "pumping" of a particular case could have been resolved in that very case rather than now re-litigated in satellite litigation. E. Edwards is Immune From Any Claim For Abuse of Process Because He Acted Properly Within the Boundaries of the Law in Pursuit of the Legitimate Interests of his Clients. Epstein's Complaint also raised the claim of "abuse of process." Confusingly stated allegations appear to be related to those just discussed, but culminate in a separate cause of action — count 3 — alleging "abuse of process." An abuse of process claim requires proof of three elements: "(1) that the defendant made an illegal, improper, or perverted use of process; (2) that the defendant had ulterior motives or purposes in exercising such illegal, improper, or perverted use of process; and (3) that, as a result of such action on the part of the defendant, the plaintiff suffered damage." S & I Investments v. Payless Flea Market, Inc., 36 So.3d 909, 917 (Fla. 4'h DCA 2010) (internal citation omitted). In fact, Edwards has correctly stated this cause in his counterclaim against Epstein. While Edwards's claim is unassailable, Epstein cannot prove these elements and never had any good faith basis to believe he could. The first element of an abuse of process claim is that a defendant made "an illegal, improper, or perverted use of process." On the surface, Epstein's Complaint appears to contain several allegations of such litigation-related impropriety. On examination, however, each of these allegations amounts to nothing other than a claim that Epstein was unhappy with some discovery effort, motion or argument made by Edwards. This is not the stuff of an abuse of process claim, particularly where Epstein fails to allege that he was damaged as the EFTA01101012 Case No. 502009CA0408003OOOCMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page IS of 27 result of Edwards's pursuit of the claims against him beyond the self-inflicted losses that flowed from his own criminal conduct. See Marty v. Gresh, 501 So.2d 87, 90 (Fla. DCA 1987) (affirming summary judgment on an abuse of process claim where "appellant's lawsuit caused appellee to do nothing against her will"). In any event, none of the allegations of "improper" process was or ever could be supported because every action Edwards took was entirely proper. For purposes of completeness, the following is a point-by-point refutation of Epstein's allegations: • Complaint ¶42(a): Edwards properly included listed damages in Jane Doe's federal action of more than $50,000,000, because those were the damages that Edwards was going to seek at trial on behalf of Jane Doe. See Statement of Undisputed Facts. • Complaint ¶42(b): Edwards was entitled to help Jane Doe exercise her First Amendment rights to criticize the unduly lenient plea bargain he received in a criminal case, See Statement of Undisputed Facts, and criticizing what happened in the criminal case is not actionable in an unrelated civil case; • Complaint ¶ 42(c): Edwards only asked reasonable questions of Epstein at his deposition, all of which related to the merits of the case against Edwards. See Statement of Undisputed Facts. • Complaint ¶ 42(d): Edwards only pursued legitimate discovery designed to further the cases filed against Epstein. See Statement of Undisputed Facts. • Complaint ¶ 42(e): Edwards did not made "ridiculously inflammatory and sound- bite rich" statements, but rather made statements supported by the evidence. For example, there is ample evidence that Epstein has abused more than 400 children, See Statement of Undisputed Facts, a fact that Epstein has always invoked his Fifth Amendment right of silence regarding rather than elaborate. • Complaint ¶ 42(0: Edwards properly filed a motion seeking to restrain Epstein's fraudulent transfer of assets in federal court where Edwards had evidence that Epstein was titling cars and other assets in the names of other persons, See Statement of Undisputed Facts. EFTA01101013 Case No. 502009CA040800XXXX.MBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 16 of 27 Epstein also fails to meet the second element of an abuse of process claim: that Edwards had some sort of ulterior motive. The case law is clear that on an abuse of process claim a "plaintiff must prove that the process was used for an immediate purpose other than that for which it was designed." S&I Investments v. Payless Flea Market, Inc., 36 So.3d 909, 917 (Fla 4th DCA 2010) (citing Biondo v. Powers, 805 So.2d 67, 69 (Fla. 4th DCA 2002). As a consequence, "[w]here the process was used to accomplish the result for which it was intended, regardless of an incidental or concurrent motive of spite or ulterior purpose, there is no abuse of process." Id. (internal quotation omitted). Here, Edwards has fully denied any improper motive, See Statement of Undisputed Facts, and Epstein has no evidence of any such motivation. Indeed, it is revealing that Epstein chose not to ask even a single question about this subject during the deposition of Edwards. In addition, all of the actions that Epstein complains about were in fact used for the immediate purpose of furthering the lawsuits filed by L.M., E.W., and Jane Doe. In other words, these actions all "accomplished the results for which they were intended" -- whether it was securing additional discovery or presenting a legal issue to the court handling the case -- ultimately leading to the full recovery of damages for the victims of Epstein's molestations. F. Pursuit of Discovery Concerning Epstein's Friends Was Reasonably Calculated to Lead to Relevant and Admissible Testimony About Epstein's Abuse of Minor Girls. Epstein alleged that Edwards improperly pursued discovery from some of Epstein's close friends. Such discovery, Epstein claims, was improper because Edwards knew that these individuals lacked any discoverable information about the sexual assault cases against Epstein. EFTA01101014 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 17 of 27 Each of the friends of Epstein was reasonably believed to possess discoverable information. The undisputed facts show the following with regard to each of the persons referenced in each of Epstein's now dismissed complaints: • Complaint ¶38(i): With regard to Donald Trump, Edwards had sound legal basis for believing Mr. Trump had relevant and discoverable information. See Statement of Undisputed Facts. • Complaint ¶38(ii): With regard to Alan Dershowitz (Harvard Law Professor), Edwards had sound legal basis for believing Mr. Dershowitz had relevant and discoverable information. See Statement of Undisputed Facts. • Complaint ¶38(iii): With regard to former President Bill Clinton, Edwards had sound legal basis for believing former President Clinton had relevant and discoverable information. See Statement of Undisputed Facts. • Complaint ¶38(iv): With regard to former Sony Record executive Tommy Mottola, Edwards was not the attorney that noticed Mr. Mottola's deposition. See Statement of Undisputed Facts. • Complaint ¶38(v): With regard to illusionist David Copperfield, Edwards had sound legal basis for believing Mr. Copperfield had relevant and discoverable information. See Statement of Undisputed Facts. • Complaint ¶40(i): With regard to former New Mexico Governor Bill Richardson, Edwards had sound legal basis for naming Former New Mexico Governor Bill Richardson on his witness list. See Statement of Undisputed Facts. As to the existence of a reasonable basis for pursuing discovery from all of the above, see also the filed transcript of the recorded conversation with It is worth noting that the standard for discovery is a very liberal one. To notice someone for a deposition, of course, it is not required that the person deposed actually end up producing admissible evidence. Otherwise, every deposition that turned out to be a "false alarm" would lead to an abuse of process claim. Moreover, the rules of discovery themselves provide that a EFTA01101015 Case No. 502009CA0408007CCOCMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 18 of 27 deposition need only be "reasonably calculated to lead to the discovery of admissible evidence." Fla. It Civ. P. 1.280(b) (emphasis added). Moreover, the discovery that Edwards pursued has to be considered against the backdrop of Epstein's obstructionist tactics. As the Court is aware, in both this case and all other cases filed against him, Epstein has asserted his Fifth Amendment privilege rather than answer any substantive questions. Epstein has also helped secure attorneys for his other household staff who assisted in the process of recruiting his minor female victims. Those staff members in turn also asserted their Fifth Amendment rights rather than explain what happened behind closed doors in Epstein's mansion in West Palm Beach. See Statement of Undisputed Facts. It is against this backdrop that Edwards followed up on one of the only remaining lines of inquiry open to him: discovery aimed at Epstein's friends who might have been outside of Epstein's sphere of influence and in a position to either directly confirm or circumstantially corroborate the fact that Epstein was sexually abusing young girls. In the context of the sexual assault cases that Edwards had filed against Epstein all which included the potential for the recovery of punitive damages, any act of sexual abuse had undeniable relevance to the case — even acts of abuse Epstein committed against minor girls other than L.M., E.W., or Jane Doe. Both federal and state evidence rules make acts of child abuse against other girls admissible in the plaintiffs case in chief as proof of "modus operandi" or "motive" or "common scheme or plan." See Fed. It Evid. 415 (evidence of other acts of sexual abuse automatically admissible in a civil case); Ha. Stat Ann. §90.404(b) (evidence of common scheme admissible); Williams v. State, 110 So.2d 654 (Fla. 1959) (other acts of potential sexual misconduct admissible). A second reason exists for making discovery of Epstein's acts of abuse of other minor girls admissible. Juries considering punitive damages issues are plainly entitled to consider "the existence EFTA01101016 Case No. 502009CA0408002OOCXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 19 of 27 and frequency of similar past conduct." TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 462 n.28 (1993). This is because the Supreme Court recognizes "that a recidivist may be punished more severely than a first offender . . [because] repeated misconduct is more reprehensible than an individual instance of malfeasance." BMW of North America, Inc. v. Gore, 517 U.S. 559, 577 (1996) (supporting citations omitted). In addition, juries can consider other similar acts evidence as part of the deterrence calculation in awarding punitive damages, because "evidence that a defendant has repeatedly engaged in prohibited conduct while knowing . . . that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law." Id. at 576-77. In the cases Edwards filed against Epstein, his clients were entitled to attempt to prove that Epstein "repeatedly engaged in prohibited conduct" — i.e., because he was a predatory pedophile, he sexually assaulted dozens and dozens of minor girls. The discovery of Epstein's friends who might have had direct or circumstantial evidence of other acts of sexual assault was accordingly entirely proper. G. Assertions that Edwards Should Have Known That the Three Cases Had "Minimal" Value Were and Are Clearly Spurious Because the Cases in Fact Had Spbstantial Value. A final claim made by Epstein is that Edwards "knew or should have known that their three filed cases were weak and had minimal value." Complaint ¶42(h). It is now no longer necessary to speculate about the value of the three cases. Epstein voluntarily paid to settle all three cases — a decision made after Rothstein's fraud had been discovered and fully revealed — and as a consequence of the decision to settle the cases, could not have been influenced by any fraud. Epstein has insisted that the sum he paid remain confidential. As such, the Settlement EFTA01101017 Case No. 502009CA040800XXYXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 20 of 27 Agreements have not been attached as an Exhibit, but can be shown to the Court in camera In light of the sum that was paid, no reasonable jury could now find that the cases had "minimal value." EPSTEIN'S LAWSUIT LACKED ANY LEGITIMATE PURPOSE FROM THE OUTSET BECAUSE OF HIS REFUSAL TO PARTICIPATE IN REASONABLE DISCOVERY. As is readily apparent from the facts of this case, Epstein filed a lawsuit intending to refuse to allow any real discovery about the merits of his case. Instead, when asked hard questions about whether he has any legitimate claim at all, Epstein has hidden behind the Fifth Amendment. As a result, under the "sword and shield doctrine" widely recognized in Florida caselaw, his suit must be dismissed. "[T]he law is well settled that a plaintiff is not entitled to both his silence and his lawsuit." Boys & Girls Clubs of Marion County, Inc. v. JA., 22 So.3d 855, 856 (Fla. 5th DCA 2009) (Griffin, J., concurring specially). Thus, "a person may not seek affirmative relief in a civil action and then invoke the Fifth Amendment to avoid giving discovery, using the Fifth Amendment as both a 'sword and a shield.' DePalma v. DePalma, 538 So.2d 1290, 1290 (Fla. 4th DCA 1989) (quoting DeLisi v. Bankers Insurance Co., 436 So.2d 1099 (Ha. 4th DCA 1983)). Put another way, "[a] civil litigant's fifth amendment right to avoid self-incrimination may be used as a shield but not a sword. This means that a plaintiff seeking affirmative relief in a civil action may not invoke the Fifth Amendment and refuse to comply with the defendant's discovery requests, thereby thwarting the defendant's defenses." Rollins Burdick Hunter of New York Inc. v. Euroclassic Limited, Inc., 502 So.2d 959 (Fla. 3id DCA 1983). EFTA01101018 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 21 of 27 Here, Epstein did precisely what the "well settled" law forbids. Specifically, he sought "affirmative relief' — i.e., forcing Edwards to pay money damages — while simultaneously precluding Edwards from obtaining legitimate discovery at the heart of the allegations that form the basis for the relief Epstein claimed to be seeking. As recounted more fully in the statement of undisputed facts, Epstein has refused to answer such basic questions about his lawsuit as: • "Specifically what are the allegations against you which you contend Mr. Edwards ginned up?" • "Well, which of Mr. Edwards' cases do you contend were fabricated?" • "Is there anything in L.M.'s Complaint that was filed against you in September of 2008 which you contend to be false?" • "I would like to know whether you ever had any physical contact with the person referred to as Jane Doe in that [federal] complaint?" • "Did you ever have any physical contact with E.W.?" • "What is the actual value that you contend the claim of E.W. against you has?" The matters addressed in these questions are the central focus of Epstein's claims against Edwards. Epstein's refusal to answer these and literally every other substantive question put to him in discovery has deprived Edwards of even a basic understanding of the evidence alleged to support claims against him. Moreover, by not offering any explanation of his allegations, Epstein is depriving Edwards of any opportunity to conduct third party discovery and opportunity to challenge Epstein's allegations. It is the clear law that "the chief purpose of our discovery rules is to assist the truth-finding function of our justice system and to avoid trial by surprise or ambush," Scipio v. State, 928 So.2d 1138 (Fla. 2006), and "full and fair discovery is essential to these important goals," McFadden v. EFTA01101019 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 22 of 27 State, 15 So.3d 755, 757 (Ha. 4th DCA 2009). Accordingly, it is important for the Court to insure "not only compliance with the technical provisions of the discovery rules, but also adherence to the purpose and spirit of those rules in both the criminal and civil context" McFadden, 15 So.3d at 757. Epstein has repeatedly blocked "full and fair discovery," and obviously intended to do so from the day his claims against Edwards were filed—facts from which a reasonable inference can and must be drawn that he never intended to prosecute his spurious claims but only to use them for purposes of intimidation. IV. EDWARDS IS ENTITLED TO ADVERSE INFERENCES FROM EPSTEIN'S INVOCATION OF THE FIFTH AMENDMENT Epstein's repeated invocations of the Fifth Amendment raise adverse inferences against him that leave no possibility that a reasonable fact£mder could ever accept his allegations against Edwards. Given all of the inferences that arc to be drawn against Epstein, no reasonable finder of fact could conclude that Epstein was somehow the victim of improper civil lawsuits filed against him. Instead, a reasonable finder of fact could only find that Epstein was a serial molester of children who was being held accountable through legitimate suits brought by Edwards and others on behalf of the minor girls that Epstein victimized. Regardless of whether viewed in the context of a litigant seeking affirmative relief or simply defending claims, "[I]t is well-settled that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them." Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); accord Vasquez v. State, 777 So.2d 1200, 1203 (Fla. App. 2001). The reason for this rule "is both logical and utilitarian. A party may not trample upon the rights of others and then escape the consequences by invoking a constitutional privilege — at least not in a civil setting." Fraser v. EFTA01101020 Case No. 502009CAI340800XXXXMBAG Edwards Motion for Leavc to Amend To Assert a Claim for Punitive Damages Page 23 of 27 Security and Inv. Corp., 615 So.2d 841, 842 (Fla. 4th DCA 1993). And, in the proper circumstances, "'Silence is often evidence of the most persuasive character."' Fraser v. Security and Inv. Corp., 615 So.2d 841, 842 (Fla. 4'h DCA 1993) (quoting United States a rel. Bilokumsky v. Tod, 263 U.S. 149, 153-154 (1923) (Brandeis, J.). In the circumstances of this case, a reasonable finder of fact would have "evidence of the most persuasive character" from Epstein's repeated refusal to answer questions propounded to him. To provide but a few examples, here are questions that Epstein refused to answer and the reasonable inference that a reasonable finder of fact would draw: • Question not answered: "Specifically what are the allegations against you which you contend Mr. Edwards ginned up?" Reasonable inference: No allegations against Epstein were ginned up. • Question not answered: "Well, which of Mr. Edwards' cases do you contend were fabricated?" Reasonable inference: No cases filed by Edwards against Epstein were fabricated. • Question not answered: "Did sexual assaults ever take place on a private airplane on which you were a passenger?" Reasonable inference: Epstein was on a private airplane while sexual assaults were taking place. • Question not answered: "How many minors have you procured for prostitution?" Reasonable inference: Epstein has procured multiple minors for prostitution. • Question not answered: "Is there anything in L.M.'s Complaint that was filed against you in September of 2008 which you contend to be false?" Reasonable inference: Nothing in L.M.'s complaint filed in September of 2008 was false — i.e., as alleged in L.M.'s complaint, Epstein repeatedly sexually assaulted her while she was a minor and she was entitled to substantial compensatory and punitive damages as a result. • Question not answered: "I would like to know whether you ever had any physical contact with the person referred to as Jane Doe in that [federal) complaint?" Reasonable inference: Epstein had physical contact with minor Jane Doc as alleged in her federal complaint EFTA01101021 Case No. 502009CA0408007CaXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 24 of 27 • Question not answered: "Did you ever have any physical contact with E.W.?" Reasonable inference: Epstein had physical contact with minor E.W. as alleged in her complaint. • Question not answered: "What is the actual value that you contend the claim of E.W. against you has?" Reasonable inference: E.W.'s claim against Epstein had substantial actual value. Without repeating each and every invocation of the Fifth Amendment that Epstein has made and the reasonable inferences to be drawn from those invocations of privilege, the big picture is unmistakably clear: No reasonable finder of fact could rule in Epstein's favor on his claims against Edwards. Accordingly, Edwards is entitled to inferences that the claims against him had and have absolutely no legitimate basis in fact. The inferences against Epstein are not limited to those arising from his privilege assertions. Epstein's guilt is also reasonably inferred from his harassment of, intimidation of, efforts to exercise control over, and limitation of access to witnesses who might testify against him. Epstein's efforts to intimidate his victims support the inference that Epstein knew that they were going to provide compelling testimony against him. The evidence that Epstein tampered with witnesses (later designated as his accomplices and co-conspirators) will be admissible to demonstrate his consciousness of guilt. "[I]t is precisely because of the egregious nature of such conduct that the law expressly permits the jury to make adverse inferences from a party's efforts to intimidate witnesses." Jost v. Ahmad, 730 So.2d 708, 711 (Fla. 2M DCA 1998) (internal quotation omitted). To be clear, Epstein's attempt to tamper with witnesses is "not simply admissible as impeachment evidence of the tampering party's credibility. The opposing party is entitled to EFTA01101022 Case No. 502009CA040800XXXXIABAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 25 of 27 introduce facts regarding efforts to intimidate a witness as substantive evidence." Id at 711 (emphasis in original) (internal citation omitted). This substantive evidence of Epstein's witness intimidation provides yet another reason why no reasonable jury could fmd in favor of his claims against Edwards, CONCLUSION For all the foregoing reasons, the Court should grant Defendant, Bradley J. Edwards, Esq., the right to assert a claim for punitive damages against Jeffrey Epstein for his intentional abuse of process for the illegitimate purpose of attempting to deter Bradley Edwards's efforts to advance the interests of his clients in holding Epstein fully responsible for his serial exploitation and sexual abuse of minors. EFTA01101023 Case No. 502009CA040800XXXX.MBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 26 of 27 CERTIFICATE OF SERVICE c,,,..a- I HEREBY CERTIFY that on July 1 5 , 2011, a copy of the foregoing has been served via U.S. Mail and email transmittal to all those on the attached service list. Jack Scarola, Esquire 1 ,- Florida Bar No. 1694 Searcy Denney Scarola Barnhart & Shipley PA 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 Phone: 561-686-6300 Fax: 561-383-9451 Attorneys for Bradley J. Edwards * All referenced materials have previously been filed with the court and delivered in support of Edwards's Motion for Final Summary Judgment. EFTA01101024 Case No. 502009CA040800XXXXMEAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 27 of 27 COUNSEL LIST Jack A. Goldberger, Esquire Shannon Mahoney, Esquire Atterbury, Goldberger & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 Phone: (561)-659-8300 Fax: (561)-835-8691 Attorneys for Jeffrey Epstein Gary M. Fanner, Jr. Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, PL 425 N. Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Phone: (954)-524-2820 Fax: (954)-524-2822 Attorneys for Jeffrey Epstein Joseph L. Ackerman, Jr., Esquire Fowler White Burnett, P.A. 901 Phillips Point West 777 S Flagler Drive West Palm Beach, FL 33401-6170 Phone: (561)-802-9044 Fax: (561)-802-9976 Attorneys for Jeffrey Epstein Marc S. Nurik, Esquire Law Offices of Marc S. Nurik One E Broward Blvd., Suite 700 Fort Lauderdale, FL 33301 Phone: (954)-745-5849 Fax: (954)-745-3556 Attorneys for Scott Rothstein Martin Weinberg, P.C. 20 Park Plaza, Suite 1000 Suffolk, MA 02116 Attorneys for Jeffrey Epstein EFTA01101025 Case 9:08-cv-80893-KAM Document 168 Entered on FLSD Docket 06/28/2010 Page 1 of 4 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 08-CIV-80893-MARRA/JOHNSON JANE DOE, Plaintiff, vs. JEFFREY EPSTEIN, Defendant pEFENDANT EPSTEIN'S MOTION FOR SETTLEMENT CONFERENCE, OR IN THE ALTERNATIVE, MOTION TO DIRECT PARTIES' BACK TO MEDIATION Defendant, JEFFREY EPSTEIN, by and through his undersigned attorneys, pursuant to the Federal Rules of Civil Procedure and the Local Rules for the Southern District of Florida, moves this Court for an order requiring the parties to attend a Settlement Conference before Magistrate Judge Linnea R. Johnson, or in the alternative, for an Order directing the parties to reconvene at a second mediation on or before July 1, 2010, and as grounds set forth would state: 1. The above-styled matter is currently scheduled on the Court's trial docket beginning July 19, 2010. (D.E. #119, Order Re-Setting Trial Date and Pretrial Deadlines). The Court's Mandatory Pretrial Stipulation and Motions in Limine deadlines are set for July I, 2010. In this regard, if the parties could reach an agreement at a settlement conference or a mediation before these pre-trial deadlines, it would result in substantial conservation of judicial resources and preparation time. 2. The parties attended mediation on April 5, 2010, at Matrix Mediation, LW, with Rodney Romano serving as mediator, but were unable to reach an agreement. (See D.E. #139). Ekt-u6rr A EFTA01101026 Case 9:08-cv-80893-KAM Document 168 Entered on FLSD Docket 06/28/2010 Page 2 of 4 Doe v. Epstein CASE NO.: 08-OV-80893-MARRADOHNSON Page 2 3. Since the April 5, 2010 mediation, additional discovery has been completed and exchanged, including each parties' psychological (Plaintiff) and psychiatric (Defendant) expert depositions. As well, Defendant filed his Motion for Summary Judgment and Motion for Bifurcation. Both parties have exchanged witness and exhibit lists. Each party will be filing extensive Motions in Lupine. Plaintiff's Trial Witness List has identified over 170 potential witnesses, and further, Plaintiff identifies over 140 trial exhibits, including composite exhibits that are hundreds of pages in length. It is conceivable this case could last 12- 20 trial days. 4. Additionally, since the parties attended mediation on April 5, 2010, Defendant has resolved all pending lawsuits, including Plaintiff, C.L. (Case No.: 10-80447) and JANE DOES Nos. 2-8 (Case Nos.: 08-80119, 08-80232, 08-08380, 08-80381, 08-80994, 08-80993, 08-80802), C.M.A. (Case No.08-80811), Jane Does Nos. 101, 102 and 103 (Case Nos. 09-80591, 09-80656, 10-80309), another Jane Doe (Case No. 08-80804), Jane Doe II (Case No. 09-80469), as well as other non-filed claims. Furthermore, Defendant has also resolved three state court claims. The only cases not resolved are this case and two (2) cases in state court (all three Plaintiffs are represented by Plaintiff's counsel, Brad Edwards, Esq. and his firm). 5. Plaintiffs in other filed cases were represented by various law firms as the court is aware. 6. With the additional discovery completed to date and with the motions, trial preparation and judicial rulings necessary to try this case, all yet to be done, Defendant Then Is also a else styled Lh4, v. Jeffrey Epstein, CASE NO.: 09-CIV-81092 — MARRA/JOHNSON, which was never saved on the Dethndant. Defended has aced aMotion to Dismiss. EFTA01101027 Case 9:08-cv-80893-KAM Document 168 Entered on FLSD Docket 06/28/2010 Page 3 of 4 Doe v. Epstein CASE NO.: 08-CIV-80893-MARRA/JOHNSON Page 3 believes that a settlement conference or mediation is in the best interest of both parties to attempt resolution. There is no prejudice to either party. 7. Therefore, Defendant requests the Court issue an order directing the parties to attend a Settlement Conference before Magistrate Judge Johnson or that the Court direct the parties to attend a further mediation before July I, 2010. Both Magistrate Judge Johnson and Rodney Romano (as the mediator in this case) are very familiar with the particular case and other claims that were asserted. 8. Defendant's Counsel has spoken with the secretary for the mediator, Rodney Romano, and she believes that he would be able to schedule a 2-3 hour mediation on short notice this week. WHEREFORE, Defendant, JEFFREY EPSTEIN respectfully requests the Court to enter an Order directing the parties to attend a Settlement Conference before Magistrate Judge Linnea R. Johnson, or in the alternative, a mediation on or before July 1, 2010. Rule 7.1 Certification I hereby certify that counsel has communicated by telephone with Plaintiffs counsel in a good faith effort to resolve the issues set forth herein. Plaintiff's position is that the parties have already complied with the mediation requirements. By: s/Robert D. Critton, Jr. Robert D. Critton, Jr. Michael J. Pike Attorneys for Defendant Epstein EFTA01101028 Case 9:08-cv-80893-KAM Document 168 Entered on F LSD Docket 06/28/2010 Page 4 of 4 Doe v. Epstein CASE NO.: 08-CIV-80893-MARRA/JOHNSON Page 4 Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was electronically filed with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record identified on the following service list in the manner specified via transmission of Notices of Electronic Filing generated by CM/ECF on this 28" day of June, 2010: Brad Edwards, Esq. Jack Alan Goldberger, Esq. Farmer, Jaffe, Weissing, Edwards, Fistos Atterbury Goldberger & Weiss, P.A. & Lehrman, PL 250 Australian Avenue South 425 N. Andrews Ave. Suite 1400 Suite #2 West Palm Beach, FL 33401-5012 Fort Lauderdale, FL 33301 561-659-8300 Phone: 954-524-2820 561-835-8691 Fax Fax: 954-524-2822 iaizesqfabellsouth.nef Erad©pathtojustice.com Co-Counselfor Defendant Jeffrey Epstein Paul G. Cassell, Esq. Pro Hac Vice 332 South 1400 E, Room 101 Salt Lake City, UT 84112 801-585-5202 801-585-6833 Fax cassellp®law.utalatedu Co-counselfor Plaintiff Respectfully submitted, By: /s/ Robert D. Critton. Jr. ROBERT D. CRITTON, JR., ESQ. Florida Bar No. 224162 rcrit@bc1claw.com MICHAEL J. PIKE, ESQ. Florida Bar #617296 moikergbelclaw.coro BURMAN, CRITION, LUTT1ER & COLEMAN, LLP 303 Banyan Boulevard, Suite 400 West Palm Beach, FL 33401 561/842-2820 Phone 561/243-0164 Fax (Co-Counselfor Defendant Jeffrey Epstein) EFTA01101029 Page 2 of 9 Westlaw, Page 1 950 So.2d 380, 32 Fla. L. Weekly S64 (Cite as: 950 So.2d 380) Torts 379 €122 Supreme Court of Florida. ECHEVARRIA, McCALLA, RAYMER, BAR- 379 Torts RETT & FRAPPIER, etc., et al., Petitioners, 3791 In General v. 379k120 Defenses and Mitigating Circum- Bradley COLE, etc., Respondent. stances 379k122 k. Litigation Privilege; Witness No. SC05-564. Immunity. Most Cited Cases Feb. 1, 2007. Litigation privilege applies in all causes of ac- tion, whether for common-law torts or statutory vi- Background: Mortgagors who defaulted on their olations. loans sued law firm retained by lenders to handle foreclosure proceedings, alleging violations of Con- *380 John Beranek of Ansley and McMullen, Tall- sumer Collection Practices Act and the Deceptive ahassee, FL, Michael J. McGimey and Dale T. and Unfair Trade Practices Act, and sought class Golden of Marshall, Dennehey, Warner, Coleman certification. The Circuit Court, Leon County, L. and Goggin, Tampa, FL, for Petitioners. Ralph Smith, J., certified the class. Parties ap- pealed. The District Court of Appeal, 896 So.2d M. Stephen Turner, Kelly Overstreet Johnson, Dav- 773, affirmed in part, reversed in part, and re- id K. Miller and Jennifer Winegardner of Broad and manded with instructions. Law firm sought review Cassel, Tallahassee, FL, Thomas J. Guilday, Claude on ground of direct conflict. W. Walker and Shawn M. Heath of Huey, Guilday, Tucker, Schwartz and Williams, Tallahassee, FL, Holding: The Supreme Court, Anstead, J., held that for Respondent. litigation privilege applies in all causes of action, whether for common-law torts or statutory viola- tions. ANSTEAD, J. Decision of District Court of Appeal quashed. Echevarria, McCalla, Raymer, Barrett & Frap- pier, et al., seek review of the decision of the First Pariente, J., concurred and filed opinion in District Court of Appeal in Echevan•ia, McCalla, which Cantero, J., concurred. Raymer, Barrett & Frappier v. Cote, 896 So.2d 773 (Fla. 1st DCA 2004), on the ground that it expressly Wells, J., concurred in part, dissented in part, and directly conflicts with a decision of the Third and filed opinion. District Court of Appeal, Boca Investors Group. Inc. v. Potash. 835 So.2d 273 (Fla. 3d DCA 2002), Bell, 1, concurred in part and dissented in part. on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We limit our review to the West Headnotes question of law upon which jurisdiction was gran- ted, and hold that the litigation privilege applies in Action 13 €12 all causes of •381 action, statutory as well as com- mon law. Accordingly, we quash the contrary de- 13 Action cision of the First District and remand for further 131 Grounds and Conditions Precedent proceedings consistent with our holding. 13k12 k. Defenses in General. Most Cited Cases Facts and Procedural History This case was presented to the district court un- 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.corrdprint/printstream.aspx?mt=Westlaw&prfl—HTMLE&vr-2.0&des... 7/18/2011 EFTA01101030 Page 3 of 9 Page 2 950 So.2d 380, 32 Fla. L. Weekly S64 (Cite as: 950 So.2d 380) der the limited circumstances of an interlocutory re- statutes referred to in the complaint because their view of a trial court's order certifying the case for contracts with their lender clients authorized class action status. The First District explained the them to charge these amounts. underlying facts giving rise to this action in its de- cision below: The plaintiffs are property owners who defaul- Cole had previously received a reinstatement ted on their mortgages with their respective letter from Echevarria regarding the potential lenders. The Echevarria firm, one of the defend- foreclosure of his mortgage, and as a result, paid ants below, was the primary firm retained by the the disputed amounts to reinstate his mortgage. lenders to handle the foreclosure proceedings On November 13, 2000, Cole, Nabors and Pye against the plaintiffs. Echevarria sent reinstate- moved for leave to file a third amended com- ment letters to the plaintiffs at the outset of the plaint to assert Cole's statutory claims. foreclosure proceedings, stating that the plaintiffs were in default on their respective mortgages and faced foreclosure unless they reinstated the mort- gages by bringing their payments up to date. The Later, Cole, as the putative class representative, letters further claimed that the plaintiffs owed filed a motion to certify a class that consisted of certain costs incurred by the lenders in the course "all persons from whom the defendants have filed of the proceedings. Kim Nabors and Otis Pye, the foreclosure actions and claimed, attempted or original plaintiffs in this action, both had defaul- threatened to collect costs in the collection of a ted on their respective mortgages and received re- 'consumer debt,' as that term is defined in instatement letters from Echevarria. Neither rein- 559.55(1), Florida Statutes, which were in excess stated their mortgage, and their properties were of the amount allowed or authorized by law" for ultimately foreclosed. the four years prior to the filing of the initial complaint through the present. lie subsequently Nabors and Pye filed suit against Echevarria filed an amended motion for class certification and the other named defendants, alleging that the seeking to define the class as all persons in Flor- firm had violated the Florida Consumer Collec- ida to whom the defendants sent reinstatement tion Practices Act and the Florida Unfair and De- letters or against whom they had filed a *382 ceptive Trade Practices Act. The essence of the foreclosure action as counsel for a lender or complaint was that the defendants acted unlaw- mortgagee for the period of July 6, 1994, through fully by asserting a claim for a debt that was in June 30, 2001. excess of the actual costs their clients incurred during the foreclosure proceedings. Specifically, The trial court granted the plaintiffs amended the plaintiffs argued that the reinstatement letter motion to certify the class action, and concluded claimed costs of $325 for title search and exam- that Cole was an appropriate class representative ination and various other charges for service of under rule 1.220, Florida Rules of Civil Proced- process, when the only cost incurred by the firm ure. In the certification order, the trial court was $55 for the title search. defined the class as all persons in Florida to whom the Echevarria firms sent reinstatement let- In response, the defendants asserted that the ters between July 6, 1994, and June 30, 2001, $325 charge was legitimate, as it included $150 seeking to collect amounts for (1) a title search or for a title search and $175 for a title examination examination exceeding the firms' actual out- performed by their in-house staff. They further of-pocket expenses incurred to a third-party argued that they had not violated either of the vendor; (2) service of process; and (3) fees or O 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=Westlaw&prft=HTMLE&vr=2.0&des... 7/18/2011 EFTA01101031 Page 4 of 9 Page 3 950 So.2d 380, 32 Fla. L. Weekly S64 (Cite as: 950 So.2d 380) costs that had not been incurred at the time the that, if it was not a misstatement, the trial court's firms sent the reinstatement letter. However, the decision to limit the class size in such a manner was court limited the class to those persons whose de- plain error under both the trade practices and the fault or failure to timely pay their mortgage ob- collection statutes because there was no legal justi- ligations did not ultimately result in a foreclosure fication for such a limitation. Id. judgment or sale. Echevarria asserted that the trial court limited Echevarria, 896 So.2d at 774-75 (footnotes the class in an attempt to avoid the implications of a omitted). In appealing the trial court's decision to possible litigation privilege bar to those claimants the First District, Cole argued that the class defini- involved in judicial mortgage foreclosure actions. tion was too narrow because it excluded property Id. The First District rejected that argument, finding owners who received a reinstatement letter but who that the litigation privilege did not apply to the in- then failed to reinstate their mortgage, leading to a stant case because the suit was initiated as a stat- foreclosure judgment or sale of their properties. Id. utory cause of action. Id. at 777. The court below at 775-76. reasoned that the litigation privilege has tradition- ally been reserved only for common law tort ac- Cole asserted that an action under the Con- tions such as libel, defamation and fraud. Id. at sumer Collection Practices Act does not depend on 776-77. Then, invoking a separation of powers ana- whether the underlying debt is valid, owed, paid, or lysis, the court stated that "a judicially created reduced to judgment since the right to bring a suit policy such as the judicial*383 immunity rule must under the Act arises from the debt collector's con- not be used to limit the application of a legislatively duct in collecting the debt and whether the conduct created, statutory cause of action." Id. at 777. Thus, involves unscrupulous debt collection practices. Id. the First District concluded that "the judicially cre- at 776. The trial judge seemingly agreed with Cole ated judicial immunity rule cannot be applied as a that the class should include everyone who received bar to the statutory causes of action in this case." Id. a reinstatement letter; the class certification order stated both that it was irrelevant whether the pro- Litigation Privilege spective class member reinstated the mortgage and Echevarria now appeals to this Court, citing that the mere transmission of the letter impacted all conflict with the Third District's decision in Boca class members similarly. Id. Nevertheless, despite Investors as to the application of the litigation priv- its explicit fording that "the violation of the Con- ilege in proceedings involving statutory causes of sumer Collection Practices Act is triggered by the action. Boca Investors initially involved a suit for transmission of the reinstatement letter seeking ille- tortious interference with a business relationship; gitimate costs, not by the ultimate outcome of any however, the plaintiffs later moved to amend their foreclosure proceedings," the trial court limited the original complaint to add a "statutory anti-trust class to include only those whose failure to pay claim." 835 So.2d at 274-75. The trial court dis- their mortgage obligations did not result in a fore- missed the case and denied the motion to amend, closure judgment or sale. Id. citing this Court's decision in Levin, Middlebroolcs, Mabee, Thomas, Mayes Mitchell, P.A. v. United In attempting to reconcile the discussions on States Fire Insurance Co., 639 So.2d 606 the record from the trial court's hearing with the tri- (Fla.1994), for the proposition that absolute im- al court's statements in the final order regarding the munity is properly afforded to any act occurring significance of an actual foreclosure judgment, the during the course of a judicial proceeding. Boca hr First District concluded that the trial court's inclu- vestals, 835 So.2d at 274. The Third District sub- sion of this qualifier in the class definition was a misstatement. Id. The First District further held O 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=Westlaw&prft=HTMLE&vr=2.0&des... 7/18/2011 EFTA01101032 Page 5 of 9 Page 4 950 So.2d 380, 32 Fla. L. Weekly S64 (Cite as: 950 So.2d 380) sequently upheld the trial court's dismissal, includ- set's disqualification, and later failing to subpoena ing the rejection of the amendment, finding "such a and call that person as a witness, from a claim of [statutory] claim is also based on statements tortious interference with a business relationship. covered by the litigation privilege. See Burton (v. 639 So.2d at 607. Answering in the affirmative, we Salzberg, 725 So.2d 450, 451 (Fla. 3d DCA 1999) extended the litigation privilege to all torts, finding )." Boca Investors. 835 So.2d at 275. Thus, in a that "absolute immunity must be afforded to any act case where a statutory antitrust claim was asserted, occurring during the course of a judicial proceed- the Third District explicitly acknowledged that the ing, regardless of whether the act involves a defam- litigation privilege could be invoked. Because the atory statement or other tortious behavior ... so long First District's decision below, holding that the lit- as the act has some relation to the proceeding." Id. igation privilege cannot be invoked when a stat- at 608. *384 We reasoned that the justification be- utory claim is being litigated, is in direct and ex- hind immunizing defamatory statements applies press conflict with the Third District's holding in equally to "other misconduct occurring during the Boat Investors, we accepted jurisdiction and now course of a judicial proceeding." Id. We concluded resolve the conflict. 'N' the opinion by noting that adequate remedies still exist for misconduct in a judicial proceeding, most Ft41. The parties have raised numerous notably the trial court's contempt power, as well as other issues both in the briefs and at oral the disciplinary measures of the state court system argument which go well bcyond the con- and bar association. Id. at 608.09. Notably, our flict issue, including, for example, an issue holding was without qualification as to the nature as to the point at which the litigation priv- of the judicial proceedings, whether based on com- ilege may first be asserted. As we emphas- mon law, statutory authority, or otherwise. "2 ized in our jurisdictional order, we granted jurisdiction in this case to consider only FN2. In addition to numerous traditional the conflicting holdings on the application defamation claims, courts in Florida have of the litigation privilege. applied Levin to uphold the use of the priv- ilege in such diverse actions as civil con- Analysis spiracy and tortious conduct in interfering In Myers v. Hodges. 53 Fla. 197, 44 So. 357 with custody and visitation rights. See Van (1907), this Court recognized the principle of the Horn v. McNabb, 715 So.2d 380, 381 (Fla. litigation privilege in Florida, essentially providing 4th DCA 1998) ("It is clear, from the face legal immunity for actions that occur in judicial of the complaint, that Van Horn enjoys ab- proceedings. In that case, involving a libel suit solute immunity from any alleged defama- based on statements contained in a complaint, this tion or other tortious act done in the course Court established a qualified litigation privilege, re- of the prior judicial proceeding."); Rushing quiring that the alleged defamatory statements be v. Bosse, 652 So.2d 869, 875-76 (Fla. 4th relevant to the judicial proceeding. Id. at 361-2. DCA 1995) (affirming a dismissal for a Under our holding, once this threshold showing was count of civil conspiracy, citing to Levin met, the statements were entitled to immunity. Id. and holding that "absolute immunity would be afforded to any conduct occurring dur- We most recently applied the litigation priv- ing the course of the adoption proceeding, ilege in Levin. In that case, the Eleventh Circuit regardless of whether the conduct involved certified a question to this Court, asking whether a defamatory statement or other tortious Florida's litigation privilege protects the act of cer- behavior, including a violation of rule tifying to a trial court an intent to call opposing 2.060(d) because signing the petition for counsel as a witness at trial in order to obtain coun- C 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=Westlaw&prf1=HTMLE8m=2.0&des... 7/18/2011 EFTA01101033 Page 6 of 9 Page 5 950 So.2d 380, 32 Fla. L. Weekly S64 (Cite as: 950 So.2d 380) adoption ... has some relation to the adop- ceedings consistent herewith. tion proceeding"). It is so ordered. Levin plainly establishes that "[t]he rationale behind the immunity afforded to defamatory state- LEWIS, CJ., and PARIENTE, QUINCE, and ments is equally applicable to other misconduct oc- CANTERO, II., concur. curring during the course of a judicial proceeding." *385 PARIENTE, J., concurs with an opinion, in 639 So.2d at 608 (emphasis supplied). Importantly, which CANTERO, J., concurs. the policy reasons for adopting a rule of immunity WELLS, J., concurs in part and dissents in part for actions taken in judicial proceedings focus on with an opinion. the judicial nature of the proceedings, not whether BELL, J., concurs in part and dissents in part. they were initiated under common law or statute. It PARIENTE, J., concurring. is the perceived necessity for candid and unres- I agree with the majority's resolution of the trained communications in those proceedings, free conflict issue. I also agree with the majority's de- of the threat of legal actions predicated upon those cision not to address the other issues raised by the communications, that is at the heart of the rule. The parties, including whether the litigation privilege nature of the underlying dispute simply does not covers the reinstatement letters at issue in this case. matter. Hence, the rationale upon which we relied However, as Justice Wells notes, this is a threshold in extending the litigation immunity privilege to all issue that requires a determination of whether the tortious causes of action likewise applies to a stat- letters were sent "in the due course of the judicial utory cause of action: "Just as participants in litiga- proceedings or as necessarily preliminary thereto." tion must be free to engage in unhindered commu- Concurring in part, dissenting in part opinion at 385 nication, so too must those participants be free to (quoting Ange v. State, 98 Fla. 538, 123 So. 916, use their best judgment in prosecuting or defending 917 (1929)). Although the First District stated that a lawsuit without fear of having to defend their ac- "Echevarria sent reinstatement letters to the tions in a subsequent civil action for misconduct." Id. plaintiffs at the outset of the foreclosure proceed- ings," Echevarria, AlcCalla, Raymer, Barrett & We see no reason why this rationale would be Frappier v. Cole, 896 So.2d 773. 774 (Fla. 1st DCA limited by whether the misconduct constitutes a 2004), the First District did not address whether the common-law tort or a statutory violation. The litig- letters were, in fact, sent "in the due course of" or ation privilege applies across the board to actions in as "necessarily preliminary" to the foreclosure ac- Florida, both to common-law causes of action, tion. Rather, the First District ruled that the litiga- those initiated pursuant to a statute, or of some oth- tion privilege did not apply because the lawsuit was er origin. "Absolute immunity must be afforded to initiated as a statutory cause of action. See id. at any act occurring during the course of a judicial 777. Now that this Court has held that the privilege proceeding ... so long as the act has some relation is applicable in litigation based on both common to the proceeding." Id. law and statutory causes of action, the First District should consider on remand whether the privilege Conclusion covers the reinstatement letters sent in this case. Given the precedent established by Levin, we hold that the litigation privilege applies in all CANTERO, J., concurs. causes of action, whether for common-law torts or WELLS, J., concurring in part and dissenting in part. statutory violations. Accordingly, we approve the The majority opinion resolves the conflict re- decision in Boca Investors, quash the decision of garding whether Florida's litigation privilege may the First District herein, and remand for further pro- be applied as a bar to statutory causes of action by O 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.corn/print/printstream.aspx7mt=Westlaw&prft=HTMLE&w=2.0&des... 7/18/2011 EFTA01101034 Page 7 of 9 Page 6 950 So.2d 380, 32 Fla. L. Weekly S64 (Cite as: 950 So.2d 380) approving the Third District Court of Appeal's de- sistent with our ruling today. cision in Boca Investors Group, Inc. v. Potash, 835 So.2d 273 (Fla. 3d DCA 2002), and quashing the (Footnotes omitted.) However, import- First District Court of Appeal's decision in Eche- antly, the Court reaffirmed Ange's cru- varria, McGinn, Raymer. Barrett & Frappier v. cial holding that the litigation privilege Cole, 896 So.2d 773 (Fla. 1st DCA 2004). arises upon the doing of any act neces- However, the majority does not answer the more sarily preliminary to a judicial proceed- fundamental question of whether the litigation priv- ing. Id. at 66. ilege extends to cover the reinstatement letters at is- sue in Echevarria. If the litigation privilege does In the instant case, the majority rightfully de- not cover these letters, it is immaterial whether the clines to address at what point "a judicial proceed- plaintiffs' cause of action is derived from statute or ing" begins for purposes of the litigation privilege common law. I write separately to clarify that in my because it is unnecessary to do so given the facts of view, Florida's litigation privilege does not extend this case. Majority op. at 383 n. 1. The reinstate- to the reinstatement letters. It would be a waste of ment letters sent by Echevarria were not a required judicial resources to not answer this question while condition precedent to foreclosure proceedings and Echevarria is before the Court. were not related to the prosecution or defense of a foreclosure suit. Thus, the reinstatement letters are In Ange v. State, 98 Fla. 538, 123 So. 916 not covered by the litigation privilege. (1929), the Court explained that the litigation priv- ilege "extends to the protection of the judge, Florida courts have previously addressed what parties, counsel, and witnesses, and arises immedi- statements arc "necessarily preliminary" to judicial ately upon the doing of any act required or permit- proceedings. The Fourth District Court of Appeal ted by law in the due course of the judicial proceed- helpfully explained that publications necessarily ings or as necessarily preliminary thereto." Ange, preliminary to judicial proceedings include presuit 123 So. at 917. " In *386Levin, Middlebrooks, communications that are required by statute or by Mabie, Thomas, Maya & Mitchell. P.A., v. United contract as a condition precedent to suit. Pledger v. States Fire Insurance Co., 639 So.2d 606, 608 Burnup & Sims, Inc., 432 So.2d 1323, 1326 (Fla. (Fla.1994), the Court reiterated that the litigation 4th DCA 1983). More recently, this Court con- privilege "must be afforded to any act occurring sidered whether voluntary statements made prior to during the course of a judicial proceeding." the instigation of criminal charges should be pro- tected by the litigation privilege. See Fridovich, FN3. In Fridovich v. Fridovich. 598 So.2d 598 So.2d at 66. The Court held that while state- 65, 69 (FIa.1992), the Court receded in ments compelled by investigatory subpoena are ab- part from Ange, explaining: solutely privileged, voluntary statements to police are only qualifiedly privileged. The Court also We thus hold, as a majority of the other noted that voluntary statements to private individu- states have held in this context, that de- als arc not privileged at all. Fridovich, 598 So.2d at famatory statements voluntarily made by 69 & nn. 7.8. private individuals to the police or the state's attorney prior to the institution of The reinstatement letters at issue were not a criminal charges arc presumptively qual- statutory or contractual prerequisite to foreclosure. ifiedly privileged. We therefore recede As noted in Pledger, Florida law requires a plaintiff from Ange and Robertson Iv. Industrial to send notice before filing a complaint in certain Insurance Company, 75 So.2d 198 types of actions. For example, section 766.106, (Fla.1954),] to the extent they are incon- Florida Statutes (2006), requires a medical malprac- C 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt—Westlaw&prft=HTMLE&vr=2.0&des... 7/18/2011 EFTA01101035 Page 8 of 9 Page 7 950 So.2d 380, 32 Fla. L. Weekly S64 (Cite as: 950 So.2d 380) rice claimant to notify each prospective defendant sent by the bank or the bank's lawyers. The litiga- by mail prior to filing a complaint. Medical mal- tion privilege as this Court has defined it would not practice litigation arguably "begins" when this noti- insulate either the bank or the bank's lawyers from fication is sent. liability for the unlawful statements. Here, no statute or contract provision required The policy reasoning underlying the litigation Echevarria to send borrowers reinstatement inform- privilege indicates that the privilege was not inten- ation in order to proceed with foreclosure. The First ded to preclude actions based on any misrepresenta- District stated: tions contained in these reinstatement letters. In Levin, the Court explained that Florida's litigation Echevarria sent reinstatement letters to the privilege "resulted from the balancing of two com- plaintiffs at the outset of the foreclosure proceed- peting interests: the right of an individual to enjoy a ings, stating that the plaintiffs were in default on reputation unimpaired by defamatory attacks versus their respective mortgages and faced foreclosure the right of the public interest to a free and full dis- unless they reinstated the mortgages by bringing closure of facts in the conduct of judicial proceed- their payments up to date. ings." Levin, 639 So.2d at 608. The Court held that absolute immunity must be afforded to any act oc- Echevarria, 896 So.2d at 774. This statement curring during the course of a judicial proceeding should not be read to mean that the reinstatement because: letters were sent "in the due course of foreclosure litigation or "necessarily preliminary" to it. Such a Just as participants in litigation must be free to reading is not supported by the record. In actuality, engage in unhindered communication, so too the reinstatement letters did not refer to foreclosure must those participants be free to use their best proceedings.'"' Mr. Echevarria testified that rein- judgment in prosecuting or defending a lawsuit statement letters were not sent to every borrower without fear of having to defend their actions in a facing foreclosure. Rather, the letters containing the subsequent civil action for misconduct. allegedly unlawful claim were sent in response to borrower requests for information regarding the Id. The Court designed the privilege to ensure possibility of reinstating the mortgage. litigants' freedom of advocacy without leaving vic- tims of tortious conduct without remedy by restrict- FN4. Echevarria's letter to class represent- ing the litigation privilege to acts occurring during ative Cole never uses the word the course of judicial proceedings. Victims of torts "foreclosure," except that it is signed by committed during judicial proceedings are protec- "Haelee Holjes Foreclosure Paralegal." ted by the trial judge's contempt power and the Court's authority to discipline members of The *387 In terms we used in Ange, the reinstate- Florida Bar. Id. ment letters were not statements "required or per- mitted by law in the due course of the judicial pro- But when communications are separate from ceedings," nor were the letters sent because they pending litigation and are not necessary in order to were legally necessary in order to prosecute fore- pursue future litigation, tort victims do not have the closures. The letters were relevant only to reinstate- benefit of these judicial safeguards. Therefore, the ment of the mortgages. The letters did not become litigation privilege should not be structured so as to part of a judicial proceeding simply because they deprive those who are intended to have the protec- were sent by a law firm. If the letters contained tion of law in respect to the communications from statements which were in violation of the law, it having that protection. Recipients of misleading or should make no difference whether the letters were fraudulent reinstatement letters must be able to en- 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. hup://web2.westlaw.corn/print/printstream.aspx?mt=Westlaw&prit=HTMLE&w--2.0&des... 7/18/2011 EFTA01101036 Page 9 of 9 Page 8 950 So.2d 380, 32 Fla. L. Weekly S64 (Cite as: 950 So.2d 380) force Florida's Consumer Collection Practices Act (FCCPA) and Deceptive and Unfair Trade Practices Act (FDUTPA), the statutory bases of the causes of action pleaded in Echevarria, for relief. To not al- low such enforcement would be an unintended and unstated consequence of the litigation privilege. In short, the reinstatement letters currently at issue were nonadversarial communications between private individuals. As noted above, this Court has emphasized that the litigation privilege does not ap- ply to voluntary presuit statements made by private individuals to private individuals. See Fridovich, 598 So.2d at 69 n. 8. Thus, the litigation privilege does not bar a civil suit based on these letters, re- gardless of whether that suit is statutory or common law in nature. Fla.,2007. Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole 950 So.2d 380, 32 Fla. L. Weekly S64 END OF DOCUMENT (0 2011 Thomson Reuters. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?mt=Westlaw&prft=HTMLE&vr=2.0&des... 7/18/2011 EFTA01101037