EFTA00804571Set 9
125p25,245w
Great. Thank you, Your Honor.
16 MR. SCAROLA: And there is a threshold
17 Binger issue, which my presentation addresses
18 that I provided to opposing counsel but have ... order. The second basis is
25 that, as Mr. Scarola said, using a Binger
Palm Beach Reporting Service, Inc.
EFTA00804592
23
1 analysis, if we were not in compliance with ... believe that Your Honor has to go
18 to the Binger analysis where the parties, by
19 agreement, agree that you can supplement the
20 exhibit list. There
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EFTA01122490Set 9
13p4,054w
where a party had invoked privilege to prevent a deposition).2
Florida Lmv: the Binger Test
There is no Florida authority directly addressing the consequences of raising, and then
belatedly ... attempting to waive, a claim of privilege. But, in Binger v. King Pest Control 401 So.
2d 1310 (Fla. 1981), and its progeny, Florida courts have similarly focused on prejudice ... fairness when considering the appropriate sanction for violation of a pretrial order.
In Binger, the plaintiff attempted to call an expert witness to testify at trial who had not
been
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EFTA00808590Set 9
2017-12-0519p5,443w
trial to actually try the case, they can reopen
discovery and start from scratch. Binger, however, does not permit Epstein to do so.
Epstein correctly notes that the Court should ... List.
McKenzie v. Prince, 718 So. 2d 394, 396 (Fla. 4th DCA 1998) (citing Binger). As the Fourth DCA
aptly stated in Tomlinson-McKenzie:
The objecting party is prejudiced ... there exists no other alternatives to alleviate the prejudice.
The supreme court, in Binger, stated that
Prejudice in this sense refers to the surprise in fact of the objecting party
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EFTA00794298Set 9
2018-11-1310p3,063w
exhibits identified since
March 2018 on his Clerk's Trial Exhibit List under a Binger' analysis, this Court raised the pending
issue of the 47 e-mails that Edwards claims ... under
seal by way of memorandum, and that will be done under seal and
'Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981).
2Excerpts of the November ... Edwards about the
documents during his November 2017 deposition, Edwards was prejudiced under a Binger
analysis:
COURT: [W]hen you took Mr. Edwards' deposition in December
[sic-November
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EFTA00808609Set 9
2018-01-1711p2,448w
this and other motions, Epstein relies on the Supreme Court's decision in Binger to argue
that Epstein should be permitted to ignore this Court's pre-trial orders ... long as there is no
prejudice to Edwards. This interpretation of Binger is wrong and is an affront to the authority of a
trial court to control its docket. Epstein ... denied
that request by order dated January 17, 2018.
And, although Epstein relies on Binger and its related cases, this is not a situation where
Epstein only recently discovered
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EFTA00808704Set 9
2018-11-1315p4,769w
exhibits identified since
March 2018 on his Clerk's Trial Exhibit List under a Binger' analysis, this Court raised the pending
issue of the 47 e-mails that Edwards claims ... Edwards about the
documents during his November 2017 deposition, Edwards was prejudiced under a Binger
analysis:
COURT: [W]hen you took Mr. Edwards' deposition in December
[sic-November ... Edwards filed his Second Amended Exhibit List on December 7, 2017).
The Binger rulings made so far by this Court and the striking of exhibits make it clear that
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EFTA01132348Set 9
2013-09-167p1,834w
SED4 STREET. FORT LAUDERDALE. FL 33301
EFTA01132352
Edwards's Motion further relied upon Binger v. King Pest Control, 401 So. 2d
1310 (Fla. 1981), and its progeny, and avowed that ... those who do not adhere to the code of
fair play advanced by Binger.'" See Supplemental Memorandum filed by Edwards on
September 16, 2013, p. 11 (citing Menard v. University
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EFTA00795963Set 9
2018-03-199p6,683w
Furthernare, 5 /12. ROCWITEACH: Who obtained the three boxes.
prejudice in the context of Binger refers to the 4 the three taxes free Fowler White, which contair.
surprise in fact ... determination .
1 The beauty of being an experienced trial 2 it relates to Binger and its progeny.
judge, if nothing else, is developing a thick skin. 3 NS. ROCIMIEMCK: Thank
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EFTA00808421Set 9
2017-07-205p1,148w
going to testify.
(3/8/18 Aft. Tr. 93:16-20.) Indeed, "[a]s indicated in Binger v. King Pest Control, 401 So. 2d
1310 (Fla. 1981), the exclusion of an unlisted ... testimony is a drastic remedy which
should pertain in only the most compelling circumstances. . . . Binger further indicates that
when the opposing party is not prejudiced by the late disclosure
https://www.justice.gov/epstein/files/DataSet%209/EFTA00808421.pdf