the State Attorneys premature sanctions motion and after it is disposed of the parties can cooperate and schedule the State Attorneys summary judgment motion II THE PURPOSE OF THE SUIT The Palm Beach Post is the largest and most prominent newspaper in Palm Beach County Florida It has extensively reported upon the sordid abuse committed by the late Jeffrey Epstein and has justifiably questioned prior State Attorney Barry Krischers decision to disregard evidence of Epsteins multiple sexual abuse of girls and to use a grand jury to indict Epstein for only one misdemeanor count of soliciting a prostitute The Palm Beach Post seeks as is its First Amendment right to gather information and inform the public about Barry Krischers actions as State Attorney and why Epstein received lenient treatment The Palm Beach Post named the Clerk of the Court and the State Attorney in their official capacities The Clerk is the custodian of the Epstein grand jury records and the State Attorney has authority over the grand jury and has the legal right to obtain the grand jury materials from the Clerk I THE STATE ATTORNEY IMPROPERLY SEEKS SANCTIONS Not merely interested in asserting grand jury secrecy in opposition to The Palm Beach Posts suit the State Attorney wrongly seeks to punish it and its counsel by seeking Fla Stat section sanctions The State Attorneys motion is flawed and should be denied The Palm Beach Posts Memorandum of Law in Opposition to the State Attorneys motion is attached hereto as Ex A The State Attorneys sanctions motion is based upon a misinterpretation of the June Order of Chief Judge Marx which held that The Palm Beach Post lacked standing to assert a claim solely under Fla Stat section The June Order does not address the interplay between the First Amendment and Fla Stat section as Chief Judge Marx solely focused upon section The constitutional issues remain umesolved After filing his motion the State Attorney moved for summary judgment on the remaining declaratory judgment count IV THE STATE ATTORNEY HAS TIED HIMSELF IN HIS OWN PROCEDURAL KNOT In his over-eagerness to sanction The Palm Beach Post and deter further inquiries into the Epstein scandal the State Attorney filed his sanctions motion before filing his motion for summary judgment The Palm Beach Post repeatedly sought to schedule the sanction motion but the State Attorneys counsel refuses to do so On September the State Attorneys counsel responded that he would not cooperate in scheduling the sanctions motion until after this Court disposed of his later filed motion for summary judgment See Ex attached hereto for a copy of Douglas Wylers September email to The Palm Beach Posts counsel In trying to justify his refusal to schedule his own sanctions motion the State Attorneys counsel admitted that his sanctions motion is premature and should not be scheduled for a hearing Despite this shocking admission the State Attorney refuses to withdraw his sanctions motion See Ex attached hereto for the exchange of additional emails To extricate himself from his self-inflicted problem the State Attorney seeks a judicial conference to schedule his summary judgment motion while letting his premature and defective sanctions motion remain unscheduled This Court should refuse to solve the State Attorneys self-created dilemma It should not schedule a hearing on his motion for summary judgment unless he withdraws his sanctions motion and ifhe does not do so then a hearing should first be set for his sanctions motion The sanctions motion should be scheduled for the daily motion calendar as it is admittedly premature and improper The Palm Beach Post and its counsel should not have an improper sanctions motion hanging over their heads Premature motions should not be filed This is so where as here the motion seeks sanctions against media parties and their counsel for their legitimate assertion of First Amendment rights WHEREFORE The Palm Beach Post requests that the State Attorneys motion for summary judgment not be scheduled until the State Attorney either withdraws his premature sanctions motion or a hearing on his sanctions motion be scheduled before the hearing on his motion for summary judgment and further requests that the Court grant such other relief as it deems just and proper Respectfully submitted GREENBERG TRAURIG P.A Attorneys for CA Florida Holdings LLC Publisher of The Palm Beach Post Stephen A Mendelsohn Esq Town Center Circle Suite Boca Raton Florida Telephone Facsimile By Isl Stephen A Mendelsohn STEPHEN A MENDELSOHN Florida Bar No mendelsohns gtlaw.com smithl gtlaw.com FLService gtlaw.com By Michael Grygiel MICHAEL GRYGIEL Admitted Pro Hae Vice State St 6th Floor Albany New York Telephone Facsimile grygielm gtlaw.com By Nina Boyaiian NINA BOY AJIAN Admitted Pro Hae Vice Century Park East Suite Los Angeles California Telephone Facsimile boyajiann gtlaw.com riveraal gtlaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this nd day of October a true and correct copy of the foregoing has been filed with the Clerk of the Court using the State of Florida e-filing system which will send a notice of electronic service for all parties of record herein ACTIVE Isl Stephen A Mendelsohn STEPHEN A MENDELSOHN EXHIBIT A Filing E-Filed PM CA FLORIDA HOLDINGS LLC Publisher of THE PALM BEA CH POST Plaintiff DA VE ARONBERG as State Attorney of Palm Beach County Florida SHARON BOCK as Clerk and Comptroller of Palm Beach County Florida Defendants IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO DIVISION AG MEMORANDUM OF LAW OF PLAINTIFF CA HOLDINGS LLC IN OPPOSITION TO THE STATE ATTORNEYS FLA STAT SECTION MOTION Plaintiff CA Florida Holdings LLC publisher of the largest and most prominent newspaper in Palm Beach County Florida The Palm Beach Post submits this Memorandum of Law In Opposition to the State Attorneys Fla Stat Motion and for the reasons set forth below the State Attorneys Motion should be denied with prejudice I THE PURPOSE OF THE PALM BEACH POSTS SUIT As extensively detailed in its Amended Complaint the criminal prosecution of the late Jeffrey Epstein by former State Attorney Barry Krischer Palm Beach Circuit Court Case No AXMB raises serious and troubling questions as to whether it was properly conducted The Amended Complaint provides numerous examples of the prior State Attorneys highly unusual in the words of the former Town of Palm Beach Police Chief treatment of the numerous complaints of sexual misconduct and assault made against Epstein including but not limited to the former State Attorneys refusal to cooperate with the investigation of the Town of Palm Beach Police Department his focus on only one underage sexual assault victim though there were other known victims his use of information provided by Epsteins defense team to undermine the States witness and his approval of a plea agreement and sentence that enabled Epstein to spend his days on furlough where he likely committed additional sexual crimes While much of the Epstein saga is a matter of public record the public still does not know how former State Attorney Krischer used the grand jury process and the secrecy that comes with it to shield Epstein and his equally powerful and corrupt accomplices from the public and justify Epsteins lenient treatment Access to the Epstein grand jury materials will reveal how the instrumentality of the grand jury was used in this case which is unquestionably a matter of vital public concern II THE STATE ATTORNEYS MOTION IMPROPERLY SEEKS TO In response to The Palm Beach Posts Request to Produce the Clerks office recently provided internal email communications but none were relevant to the Request According to its officials the Clerks office does not maintain logs or registers and that it is impossible to determine whether the State Attorneys office sought or obtained access to the Epstein grand jury materials during or after its Epstein prosecution Given this uncertainty The Palm Beach Post will serve discovery demands upon the State Attorneys office to determine whether it accessed or exercised control over the grand jury materials Also the Clerk who admittedly has both possession and control of the Epstein grand jury materials has not followed the State Attorneys lead in seeking to sanction The Palm Beach Post the Clerk has neither provided the 21-day safe harbor notice contained in Section nor has she moved for sanctions The Clerks decision supports the inference that the State Attorney is using the threat of sanctions to avoid litigating the case on its merits I THE STATE ATTORNEY MISREPRESENTS THE COURTS JUNE ORDER In its bare-bones Section motion the State Attorneys main argument is that this Courts June Order Granting Defendants Motions to Dismiss Count II of Plaintiffs First Amended Complaint with Prejudice the Order held that all The Palm Beach Posts claims are without any merit The Order does no such thing Though the parties motion papers and the oral argument on June covered a range of complex statutory issues the Order addresses only one-whether Fla Stat creates a private right of action This issue was not the principal focus of either the State Attorneys or the Clerks motions to dismiss Count IL Instead they primarily asserted that The Palm Beach Post lacked standing under section to seek grand jury materials in furtherance of justice The State Attorney and the Clerk argued that the statute prohibited the use of grand jury materials except for limited purposes in a civil or criminal proceeding in which the movant is a party Because according to the State Attorney and the Clerk The Palm Beach Post did not intend to use the Epstein grand jury materials in a civil case in which it was a party nor in a criminal case the State Attorney and the Clerk asserted it lacked standing The Palm Beach Post as set forth in its Opposition to Defendant Dave Aronberg As State Attorney of Palm Beach County Floridas Motion to Dismiss Count II of the First Amended Complaint Plaintiffs Opposition views as encompassing three possible scenarios use by a party in her civil case use by a party in her criminal proceeding or use by the media as a representative of the public in furtherance of justice as recognized by the First Amendment to the U.S Constitution and the Florida Constitution This Court in its Order did not address these arguments though it did acknowledge during oral argument that The Palm Beach Post had standing-page of the transcript Rather the Order focused solely on whether creates an implied private right of action and held that it did not See Order at That ruling did not interpret no less apply the statutes in furtherance of justice exception to grand jury secrecy to the Epstein case Given this Courts narrow ruling the State Attorney wrongly claims that the Court determined that the justice provision of has been adjudicated against The Palm Beach Post and that Count I is frivolous IV THE ISSUES RAISED IN COUNT II ARE NOVEL AND COMPLEX As set forth above this Court limited its inquiry to whether a cause of action under section should be judicially implied citation omitted See Order at In determining that the Florida legislature did not intend to create a statutory cause of action and remedy this Court addressed a novel and complex issue As such section on its face is not implicated Section a provides that a court shall award fees to the prevailing party if the losing party or the losing partys attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial a was not supported by the material facts necessary to establish the claim or defense or would not be supported by the application of then-existing law to those material facts Section a further provides that monetary sanctions shall not be awarded if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension modification or reversal of existing law or the establishment of new law as it applied to the material facts with a reasonable expectation of success Emphasis added The Florida Supreme Court has held that attorneys fees should not be awarded unless there is a total or absolute lack of a justiciable issue which is tantamount to a finding that the action is frivolous and so clearly devoid of merit both on the facts and law as to be completely untenable Muckenfuss Deltona Corp So 2d Fla quoting Whitten Progressive Cas Ins Co So 2d Fla Where an issue is novel and complex sanctions under section a may not be imposed Grove Key Marina LLC Casamayor So 3d Fla 3d DCA It cannot be contested that the Order rejecting a section implied private right of action for the media is a case of first impression indeed neither this Court nor the State Attorney and the Clerk cite to any case that previously resolved this issue In contrast The Palm Beach Post presented various reasoned arguments why section creates a private right of action in favor of the media on both constitutional and statutory grounds See Plaintiffs Opposition at The Palm Beach Post first analyzed the Florida Statutes themselves and U.S Supreme Court case law both of which confirm that Floridas grand jury secrecy laws are not absolute See Plaintiffs Opposition at Butterworth Smith U.S section unconstitutional to the extent it prohibits grand jury witnesses from disclosing their own testimony Florida has also held that the media is entitled to know of grand jury reports that find public corruption notwithstanding section secrecy See Miami Herald Pub Co Marko So 2d Fla In Marko the Florida Supreme Court recognized that the media plays a vital role in informing the public of the misdeeds of public servants and statutory grand jury secrecy cannot outweigh the publics right to be informed through its constitutionally protected news reporting Here The Palm Beach Post alleges overwhelming facts that raise serious questions as to why Epstein was prosecuted and sentenced in such a highly unusual and lenient manner At the heart of this issue is the publics right to know through the media whether the attorneys then working the case at the State Attorneys Office fulfilled their public duties or acted either corruptly or recklessly by misusing the grand jury process In this regard The Palm Beach Post analyzed section and presented a well-reasoned argument supporting the existence of a private right of action it properly focused on the interplay between section allowance for disclosure in furtherance of justice on the one hand with the publics right to know through the media under the First Amendment and the Florida Constitution This Court did not expressly address The Palm Beach Posts reliance on a combined constitutional and statutory basis for a section private right of action Instead it focused exclusively upon section and in holding that the in furtherance of justice exception is constrained by the statutes other secrecy provisions The State Attorneys section motion also ignores the constitutional role of the media in informing the public The fallacy of a purely statutory analysis without consideration of The Palm Beach Posts constitutional rights and obligations in conjunction with section is that justice can never be furthered as the statute authorizes unless the media is able to provide facts to the public as to whether its officials may have violated their oaths The Palm Beach Post acted in good faith and presented reasoned bases to justify the interplay between the federal and state constitutions and section It properly sought to enforce the rights of the media in the Epstein case through the application of complex constitutional and statutory arguments to create new law Though the Court dismissed one of The Palm Beach Posts two claims such partial dismissal cannot support the State Attorneys section motion THIS COURTS LIMITED ORDER DISMISSING COUNT II DID NOT RESOLVE COUNTI The State Attorneys threadbare section motion assumes that this Courts Order extinguishes Count I Declaratory Judgment and renders Count I frivolous The State Attorney is demonstrably wrong Count II alleges that The Palm Beach Post has constitutional and statutory standing for it to overcome grand jury secrecy provisions in furtherance of justice Count I in contrast does not allege a section private right of action Instead Count I seeks a declaration that the U.S Constitutions First Amendment and the Florida Constitutions analogous provisions along with section provide ample grounds for this Court to direct the release of the Epstein grand jury materials to The Palm Beach Post or require the Court to conduct an in camera examination of the same to balance the publics right to know through a free media with Floridas qualified statutory interest in grand jury secrecy These issues have yet to be addressed by a dispositive motion or by either Defendant The State Attorneys motion to dismiss Count II focused exclusively on section and did not acknowledge nor address any constitutional issues The same is true of the Clerks motion to dismiss Concomitantly as stated above the Order was limited to the four comers of section and expressly did not consider The Palm Beach Posts constitutional arguments VI THE STATE ATTORNEY IS A PROPER PARTY The State Attorney also argues that it does not possess the Epstein grand jury materials and based upon this unswom claim sanctions are also justified Again the State Attorney is incorrect as there is no factual or legal basis to impose sanctions upon its unsupported allegation While the State Attorney alleges his office does not currently have physical possession of the Epstein grand jury materials he has argued relying on section that the Clerk should not produce them By taking a position against disclosure the State Attorney has in effect asserted his right to the secrecy of the Epstein grand jury materials Stated another way the State Attorney claims the statutory right to prevent access to the Epstein grand jury materials the inverse of such a claimed right is that he has the right to provide access to the same materials The State Attorneys position actually supports The Palm Beach Post He was not named as solely a custodian of the grand jury records Rather he is a defendant in his official capacity as his office has as its primary interest the protection of its grand jury system Italics in original In re Grand Jury Proceedings 2d 11th Cir In that case the federal government petitioned a Florida State Attorney to tum over state grand jury transcripts In opposition the Broward State Attorney argued against their release citing to section Later a federal grand jury served a subpoena upon the same State Attorney seeking grand jury transcripts The State Attorney advised the federal court that he would produce the transcripts thereby demonstrating that whether or not he has physical possession he had legal authority to obtain and deliver them pursuant to the subpoena For these same reasons the State Attorney in his official capacity is a necessary party Also assuming the State Attorney does not have physical possession Florida law does not prohibit his office from requesting Epstein grand jury materials from the Clerk Indeed as the State Attorney is well aware Chapter Fla Stats does not bar any State Attorney from accessing grand jury materials even after a defendant has been convicted and sentenced VII THE STATE ATTORNEYS MOTION IS ADMITTEDLY PREMATURE The State Attorney also admits that his sanctions motion which is based on the motion to dismiss proceedings and resulting Order is premature See Exh A attached hereto for a copy of Douglas Wylers September email As set forth above those proceedings and the Order were focused on The Palm Beach Posts statutory claim not the declaratory relief claim The State Attorney acknowledges that his motion is not ripe because it first requires this Courts resolution of his later-filed summary judgment motion Unlike his motion to dismiss his summary judgment motion addresses The Palm Beach Posts remaining declaratory action claim for relief The State Attorneys admission demonstrates that his motion is contrary to the express language of section As stated above section a examines a claim or defense when initially presented to the court Because the merits of the State Attorneys sanctions motion admittedly depend upon this Courts resolution of his yet-unscheduled summary judgment motion the State Attorneys sanctions motion is premature Reznek Chase Home Fin LLC So 3d Fla 3d DCA As a premature motion it should be denied WHEREFORE The Palm Beach Post respectfully requests that the State Attorneys Fla Stat section motion be denied with prejudice and that the Court grant such other relief it deems just and proper Respectfully submitted GREENBERG TRAURIG P.A Attorneys for CA Florida Holdings LLC Publisher of The Palm Beach Post Stephen A Mendelsohn Esq Town Center Circle Suite Boca Raton Florida Telephone Facsimile By Isl Stephen A Mendelsohn STEPHEN A MENDELSOHN Florida Bar No mendelsohns gtlaw.com smithl gtlaw.com FLService gtlaw.com By Isl Michael Grygiel MICHAEL GRYGIEL Admitted Pro Hae Vice State St 6th Floor Albany New York Telephone Facsimile grygielm gtlaw.com By Isl Nina Boyaiian NINA BOY AJIAN Admitted Pro Hae Vice Century Park East Suite Los Angeles California Telephone Facsimile boyajiann gtlaw.com riveraal gtlaw.com CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 2nd day of October a true and correct copy of the foregoing has been filed with the Clerk of the Court using the State of Florida e-filing system which will send a notice of electronic service for all parties of record herein ACTIVE Isl Stephen A Mendelsohn STEPHEN A MENDELSOHN EXHIBIT A From To Subject Date Mr Mendelsohn Douglas Wyler Mendelsohn Stephen A Shld-FTL-LTI Re PALM BEACH POST Epstein Friday September PM Again we will not withdraw the motion Please let me know when you are available for the case management conference or I will unilaterally schedule the hearing Doug Wyler Esq Jacobs Scholz Wyler LLC Gateway Blvd STE Fernandina Beach FL fax doug.wyler comcast.net Please be advised that this e-mail and any files transmitted with it are confidential attorney-client communication or may otherwise be privileged or confidential and are intended solely for the individual or entity to whom they are addressed If you are not the intended recipient please do not read copy or retransmit this communication but destroy it immediately Any unauthorized dissemination distribution or copying of this communication is strictly prohibited From MendelsohnS gtlaw.com Date Friday September at PM To Douglas Wyler Esq doug.wyler comcast.net Cc BoyajianN gtlaw.com grygielm gtlaw.com Subject RE PALM BEACH POST Epstein Mr Wyler we appreciate your candor in admitting your motion is premature You must withdraw it as the motion has no basis which you acknowledge because the court has yet to address the merits of the dispute Please do so without further delay Thank you From Douglas Wyler doug.wyler comcast.net Sent Friday September AM To Mendelsohn Stephen A Shld-FTL-LT MendelsohnS gtlaw.com Cc Boyajian Nina Shld-LA-LT BoyajianN gtlaw.com Grygiel Michael Shld-ALB-LT grygielm gtlaw.com Subject Re PALM BEACH POST Epstein EXTERNAL TO GT Mr Mendelsohn I spoke with my client we will not withdraw our motion for attorneys fees Again we insist that the motion for summary judgment be heard first as it would be premature to have an attorney fee hearing when there is no prevailing party and no substantive hearings held since the motion for fees was filed Being that we are unable to agree on the order of the motions to be heard I am filing the attached motion to set case management conference Please see the attached available hearing times for this motion and let me know what works best for you so we can resolve this matter Sincerely Doug Wyler Esq Jacobs Scholz Wyler LLC Gateway Blvd STE Fernandina Beach FL fax doug.wyler comcast.net Please be advised that this e-mail and any files transmitted with it are confidential attorney-client communication or may otherwise be privileged or confidential and are intended solely for the individual or entity to whom they are addressed If you are not the intended recipient please do not read copy or retransmit this communication but destroy it immediately Any unauthorized dissemination distribution or copying of this communication is strictly prohibited From MendelsohnS gtlaw.com Date Wednesday September at AM To Douglas Wyler Esq doug.wyler comcast.net Cc BoyajianN gtlaw.com grygielm gtlaw.com Subject PALM BEACH POST Epstein Mr Wyler please let us know if the State Attorney will withdraw its sanctions motion without prejudice Thank you If you are not an intended recipient of confidential and privileged information in this email please delete it notify us immediately at postmaster gtlaw.com and do not use or disseminate the information HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June Page IN THE CIRCUIT COURT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO CIRCUIT CIVIL DIVISION AG CA FLORIDA HOLDINGS LLC PUBLISHER OF THE PALM BEACH POST Plaintiff/Petitioner vs DAVE ARONBERG SHARON BOCK Defendant/Respondents HEARING BEFORE THE HONORABLE KRISTA MARX ZOOM CONFERENCE Wednesday June a.m a.m REMOTE ZOOM CONFERENCE Port Saint Lucie Florida Stenographically Reported By SONJA REED Court Reporter PROCEEDINGS THE COURT We are here today for a very Page limited purpose Im sure the attorneys are aware of that but I just dont want there to be any confusion We are here on Defendant Dave Aronberg and Defendant Sharon Bock for the Comptroller and the State Attorneys motion to dismiss Count II Youre all acutely aware as the lawyers that this is a question of law So were not going to be diving into facts and the Court will not be deciding the merits of this motion this morning We are simply here for the sole purpose of that motion to dismiss So I just wanted to make sure that we all stay on track and were all on that same page So Ms Boyagian Ill send it to you first Maam I of course we all know that the Law I must look at the four corners of the motion which alleges that the State Attorney David Aronberg and the clerk and comptroller Sharon Bock actually have custody and control of these grand jury proceeding Whether that is true or not is not for this court to determine because Im looking simply at the four corners of the complaint But not for nothing I think we all know that they dont have control and Page Page APPEARANCES On behalf of the Plaintiff/Petitioner GREENBERG TRAURIG P.A Century Park East Suite Los Angeles California boyajian gtlaw.com BY NINA BOYAJIAN ESQUIRE On behalf of the Defendant/Respondent JACOB SCHOLZ WYLER LLC Gateway Boulevard Suite Fernandina Beach Florida doug.wyler comcast.net BY DOUGLAS A WYLER ESQUIRE On behalf of the Defendant/Respondent CLERK COMPTROLLER PALM BEACH COUNTY P.O Box West Palm Beach Florida nfingerhut mypalmbeachclerk.com BY NICOLE FINGERHUT ESQUIRE custody of the records But Im going to assume that its correct because thats what has been alleged So what I first want to hear from is the attorney for Florida Holdings with regard to assuming arguendo that Florida Statute does create a cause of action what relief is it that youre seeking from in Count II specifically Not the dee action Were not here on that today what is it you hope to get a judgment MS BOYAGIAN Thank you your Honor Good morning and thank you for the privilege of appearing before this court The relief we are seeking is disclosure of the grand jury records pursuant to the Furtherance of Justice Exception to And under the First Amendment The press as your Honor is aware has a right of access under the First Amendment as a surrogate of the public THE COURT Let me just stop you for a minute Id like you to answer my specific question So I am not particularly convinced and Id like for you to address that So were not going to dive into facts or the pres standing because thats not something were here to discuss today EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June Page And I have read the voluminous paperwork Ive received paperwork as and five-minute ago from some of the other parties But I deeply appreciate the fact that you sent this to me so much in advance and I have been able to spend some time with as I said the voluminous paperwork that was provided But as you know Maam we are here for such an extremely limited issue today and that their motion to dismiss where they state youre suing the wrong people that the court has these records And so more importantly I want you to address whether Section gives you a private cause of action against the state attorney and the clerk Again Im going to assume the facts are true that are asserted in the motion Whether they are or not because I think we can all agree were not for sure if they ever that the state attorney doesnt have these records So what is it youre seeking in Count II not the dee action I know you want the records Ive got that But in Count II specifically what do you whats the relief youre Page intended to benefit being the surrogate of the public and exercising its first amendment right The second issue of legislative history and the purpose statutory purpose are somewhat related We were unable to find much legislative history on this issue of a private right of action under the statute There is nothing that says we intend to create a private action but theres certainly nothing that says we do not want to create a private right of action What we do have is that in the same time that was reenacted a statute that pertains to the secrecy of State Grand Jury statewide grand juries was also enacted That provision which is has no exceptions for for revealing these records By contrast the legislature intentionally enacted with the Furtherance of Justice Exception If the public through the press cant bring a private right of action to enforce that exception or to seek relief under that exception that seeking and more importantly how under this statute intentionally placed exception of furthering justice do you get to assert a private action a private is essentially rendered hollow cause of action against the state attorney and the Speaking simultaneously Page Page clerk MS BOYAGIAN Your Honor we are aware of course that there is no expressed private right of action But that does not end the inquiry As the Florida Supreme Court stated Where a statute like forbids an act which is to Plaintiffs injury the party injured should have an action And thats the Smith Piezo case in the volume of materials that we sent you THE COURT Okay Pause for a minute I dont think anybody is saying that there isnt a cause of action or that the press doesnt have standing Thats not what Im asking you Im asking you how are the clerk and the state attorney the proper defendants So you know nowhere have I said there isnt a cause of action Clearly there is Im puzzled by the procedural posturing of this case naming the state attorney And you know Im further stymied by the fact Theres no question here that the denial of the that you allege in your complaint that they have FIRST AMENDMENT right to the press is an injury which particularly David Aronberg the State Attorney gives rise to a right of action Stated another way looking at the analysis that the Fischer Metcalf Court looked at there are three factors in determining whether there is a private right of action where a statute does not expressly provide for one One is whether the Plaintiff is part of the class for which the statute is intended to protect second is a legislative history and the third is the underlying purposes of the statutory scheme The first factor I already addressed that the press is part of the class that the statute is that he has these records But Im going to assume thats true So Im not telling you you dont have a cause of action Im just saying okay lets run this all the way out Lets say you win and you get a judgment against the State Attorney Dave Aronberg Whats he supposed to do with it He cant release the grand jury testimony He has no authority whatsoever to do that MS BOYAGIAN Well your Honor as you stated this is a motion to dismiss stage and we are entitled to discovery on the issue of possession EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June Page custody and control My understanding is that the state attorney has asserted that he does not have possession Its not my understanding that the clerk has taken that position So the clerk may indeed be the someone who does have possession custody and control In any event we would submit that the state attorney even it does not have actual possession at this time it might be able to have the power to control or direct the entity or persons who do have control and possession to release those to effect the judgment THE COURT So let me ask you this So the clerk is the keeper of the record But even if you got a judgment against her lets say you asserted this cause of action and lets say you win and you get a judgment against the clerk The clerk cannot release grand jury testimony to you Only the court can So really all Im saying to you is I do not understand the way this case was filed or why these are the defendants because its impossible for them to perform I mean Im going to assume based on your motion again that they do have the records But we Page all know everyone in the room knows they do not that only the court theyre theyre with a court interpreting And only the court can release the records So if you get a judgment against either the state attorney or the clerk they cannot I mean I guess what youre saying to me is well we want to do discovery and we want them to say unequivocally I have these records or I dont have them And I mean the law is abundantly clear Page give you what they dont have So I mean its as simply as this Are you you just want to engage in some discovery for them to absolutely assert particularly the state attorney I dont have these records look to the rules that say the moment the grand jurys over theyre sealed and theyre turned over and they cannot be released without court order So Im not addressing the merits or whether you have an exception or youre able to argue that theres an exception in the furtherance of justice Were not getting there today Im simply saying why should these two entities have to defend this lawsuit when even down the road if they win they cant give you what they dont have MS BOYAGIAN As your Honor stated Im not sure thats the case with the clerk That was not in their that issue was not stated in their papers THE COURT Let me ask you this then Do you think if you got a judgment and I or the court doesnt make the determination that the grand jury records should be released that the clerk would be able to perform Would they be able to say here you go I mean could the clerk just make that unilateral Page decision Im going to release the records sealed confidential records Does she have any authority to do that MS BOYAGIAN My understanding your Honor is that requires a court order before the records are unsealed THE COURT Exactly Exactly All right Let me hear from Mr Aronbergs attorney Mr Wyler MR WYLER Thank you your Honor May it You cannot do it without a court determining whether please the Court in the furtherance of justice the release is appropriate THE COURT Good morning Sir MR WYLER Good morning MS BOYAGIAN And that is a determination Your Honor I just wanted to let you know that were asking your Honor to make and were asking for I spoke with counsel for the clerk Ms Fingerhut a an order from your court THE COURT When we get to the merits of the case sure it is But again youre asking me to make that determination and for me to make a determination of whether the grand jury records should be released And the only thing were here today about is why should the clerk and the state attorney have to defend a civil action when its a possibility of performance They even if you were to win and get a judgment against them they cannot couple of days before this hearing and we decided that I would just make the presentation for both of of us being that our arguments overlap except for the fact of who this claim whether they have the records or not which of course weve said we dont have custody of the records But nonetheless our arguments overlap The Plaintiff is attempting to assert a cause of action under Section That statute settled testimony not to be disclosed exceptions So its just EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June Page explaining exceptions to the disclosure of the grand jury testimony Our position is that it doesnt set forth a cause of action and that its impossible for us to perform what theyre asking I know you said you didnt really want to get into the Furthering Justice Exception but I know thats what theyre using as their basis to get to Page attorneys position and we also agree with what the Court has said that the plain language of the statute a cause of action doesnt exist And we really cannot well be defending something without the four corners Were simply involved in this action because the clerk is the custodian of the records THE COURT Okay Thank you Maam these But its our position that the clear Ms Boyagian back to you unambiguous statutory language it shows that this MS BOYAGIAN Your Honor Id like to note disclosure only applies to a civil or criminal case that in the Butterworth case in which the Supreme and that within that civil or criminal Court limited the application by saying that a Speaking simultaneously witness can reveal her own testimony and prohibiting THE COURT Again sir Im sorry As I told that they violate the First Amendment Plaintiffs counsel THE COURT Say that again please MR WYLER can only be used in the defense MS BOYAGIAN In the Supreme Court case the for Butterworth case in which the Supreme Court ruled THE COURT Okay Were not there Were not that cant restrict a Grand Jury witness from discussing the merits of the case and Im not ready to cross that bridge Im here for a very very limited hearing today So just as I stopped Plaintiffs counsel from revealing her own testimony that would be a violation of First Amendment in that case the state attorney was in fact a party THE COURT Well I assume the state attorney arguing the merits of the case and whether or not the that was present I mean I dont find that thats Furtherance of Justice Exception will apply in this close to what were talking about here and thats instance were not even there yet whether or not I mean as we know this was in Page Page Im only here for the purpose of determining Certainly Dave Aronberg wasnt even the state whether or not the clerk and state attorney should be attorney then But this is about the release of dismissed And I am bound by the four corners of the records document which assert that you do have control and I want to give you ample opportunity and custody over it again I sincerely appreciate that all of the case So if youll fashion your argument with regard law and the way that it was presented to the Court in to that limited purpose I would appreciate it MR WYLER No problem your Honor I apologize Within the four corners of their complaint our position is that they failed to state a cause of action under It does not provide for it doesnt list that theres no element that they have adequately pied to assert a cause of action under that Theres and the only thing theyre asking such a timely fashion I really do And I did spend some time with it But I want to give you whatever opportunity you want to take to convince me that it is in as to Count again Not the dee action whether these would be the appropriate defendants And you know really I want you to boil it down for me as to this lets take it all the way down the road You win You get a judgment against the clerk and the state attorney for is records that we dont have I know theres other reasons why you might have Theres really not much more to it your Honor filed it this way But Im just simply puzzled And we would ask that you would grant our motion to because I do hear what the clerk and the state dismiss for failure to state a cause of action attorney are saying and that is performance is THE COURT Okay Ms Fingerhut are you still impossible They dont have the records and on the phone cannot absolutely Theres not even an inch of MS FINGERHUT Yes your Honor wiggle room that they could release the records THE COURT Is there anything you wish to add even if you got a judgment It is solely a MS FINGERHUT We agree with the state determination for the court I frankly think you know theres ways to EsquireSolutions com HEARING CA FLORIDA HOLDINGS vs DAVE ARONBERG June Page Page get to your records Theres ways to get Speaking simultaneously confidential records But it isnt by suing the THE COURT Can you hear Can the attorneys state attorney and the clerk hear So I just want to hear your last final argument MS FINGERHUT custodian the records and on how Count II the appropriate defendants are the that he cannot release the records without court derk and the state attorney Even assuming arguendo THE COURT Exactly they have the records we know they dont you Okay All right Anything further Mr Wyler were to get a judgment against them how would you MR WYLER No your Honor I concur with the expect them to perform attorneys for the clerks office that its impossible MS BOYAGIAN Two points your Honor One is for us to release these records Theres no intent that again the clerk did not assert in her papers to hide them or block anything from the Plaintiff that she does not have control That is a position THE COURT Okay Anything further that the State Attorneys Office has asserted It is Ms Fingerhut our allegation and as your Honor noted allegations MS FINGERHUT No your Honor must be accepted as true as true at this stage of THE COURT And Ms Boyagian anything the proceedings further Maam Second it is also our understanding that the MS BOYAGIAN Nothing further your Honor state attorney and the clerk intend to block access THE COURT Okay I will get an order out to these records So our allegation is that they do quickly Thank you folks so much And Ill see you have possession custody or control which the clerk on the next round Thanks a lot has not denied and second that they are trying to MS BOYAGIAN Thank you your Honor block access to the records MR WYLER Thank you your Honor THE COURT What do you mean What do you The proceedings concluded at a.m mean Theyre not trying to block it Theyre saying that despite the fact lets just talk about Page Page the clerk because we all know the state attorney CERTIFICATE OF REPORTER doesnt have it So the clerk is the custodian of records Thats her main job Theres no doubt about it We all know that But we also know unequivocally unequivocally only the court can make the determination of whether the moving party has satisfied that there is an exception that these should be released So again I ask you she is in fact the custodian of the records is it your opinion that if you got a judgment saying clerk and comptroller gets a judgment against them that she can release the records without the court without the court weighing in without the court making that determination as required by law MS BOYAGIAN No your Honor We are asking your Honor to order the clerk to do that under your discretion THE COURT All right Mr Ms Fingerhut you wish to be heard on that MS FINGERHUT Your Honor our position is that were not trying to block access to the records I Sonja Reed Court Reporter certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript pages through is a true and complete record of my stenographic notes Dated this 3rd day of June Sonja Reed Court Reporter EsquireSolutions com EXHIBIT From To Subject Date Mr Mendelsohn Douglas Wyler Mendelsohn Stephen A Shld-FTL-LTI Re PALM BEACH POST Epstein Friday September PM Again we will not withdraw the motion Please let me know when you are available for the case management conference or I will unilaterally schedule the hearing Doug Wyler Esq Jacobs Scholz Wyler LLC Gateway Blvd STE Fernandina Beach FL fax doug.wyler comcast.net Please be advised that this e-mail and any files transmitted with it are confidential attorney-client communication or may otherwise be privileged or confidential and are intended solely for the individual or entity to whom they are addressed If you are not the intended recipient please do not read copy or retransmit this communication but destroy it immediately Any unauthorized dissemination distribution or copying of this communication is strictly prohibited From MendelsohnS gtlaw.com Date Friday September at PM To Douglas Wyler Esq doug.wyler comcast.net Cc BoyajianN gtlaw.com grygielm gtlaw.com Subject RE PALM BEACH POST Epstein Mr Wyler we appreciate your candor in admitting your motion is premature You must withdraw it as the motion has no basis which you acknowledge because the court has yet to address the merits of the dispute Please do so without further delay Thank you From Douglas Wyler doug.wyler comcast.net EXHIBIT Sent Friday September AM To Mendelsohn Stephen A Shld-FTL-LT MendelsohnS gtlaw.com Cc Boyajian Nina Shld-LA-LT BoyajianN gtlaw.com Grygiel Michael Shld-ALB-LT grygielm gtlaw.com Subject Re PALM BEACH POST Epstein EXTERNAL TO GT Mr Mendelsohn I spoke with my client we will not withdraw our motion for attorneys fees Again we insist that the motion for summary judgment be heard first as it would be premature to have an attorney fee hearing when there is no prevailing party and no substantive hearings held since the motion for fees was filed Being that we are unable to agree on the order of the motions to be heard I am filing the attached motion to set case management conference Please see the attached available hearing times for this motion and let me know what works best for you so we can resolve this matter Sincerely Doug Wyler Esq Jacobs Scholz Wyler LLC Gateway Blvd STE Fernandina Beach FL fax doug.wyler comcast.net Please be advised that this e-mail and any files transmitted with it are confidential attorney-client communication or may otherwise be privileged or confidential and are intended solely for the individual or entity to whom they are addressed If you are not the intended recipient please do not read copy or retransmit this communication but destroy it immediately Any unauthorized dissemination distribution or copying of this communication is strictly prohibited From MendelsohnS gtlaw.com Date Wednesday September at AM To Douglas Wyler Esq doug.wyler comcast.net Cc BoyajianN gtlaw.com grygielm gtlaw.com Subject PALM BEACH POST Epstein Mr Wyler please let us know if the State Attorney will withdraw its sanctions motion without prejudice Thank you If you are not an intended recipient of confidential and privileged information in this email please delete it notify us immediately at postmaster gtlaw.com and do not use or disseminate the information EXHIBIT From To Cc Subject Date Mendelsohn Stephen A Shld-FTL-LD Douglas Wyler Boyajian Nina Shld-LA-LD Grygiel Michael Shld-ALB-LT RE PALM BEACH POST Epstein Friday September PM I will let you know Monday From Douglas Wyler doug.wyler comcast.net Sent Friday September PM To Mendelsohn Stephen A Shld-FTL-LT MendelsohnS gtlaw.com Subject Re PALM BEACH POST Epstein Mr Mendelsohn Again we will not withdraw the motion Please let me know when you are available for the case management conference or I will unilaterally schedule the hearing Doug Wyler Esq Jacobs Scholz Wyler LLC Gateway Blvd STE Fernandina Beach FL fax doug.wyler comcast.net Please be advised that this e-mail and any files transmitted with it are confidential attorney-client communication or may otherwise be privileged or confidential and are intended solely for the individual or entity to whom they are addressed If you are not the intended recipient please do not read copy or retransmit this communication but destroy it immediately Any unauthorized dissemination distribution or copying of this communication is strictly prohibited From MendelsohnS gtlaw.com Date Friday September at PM To Douglas Wyler Esq doug.wyler comcast.net Cc BoyajianN gtlaw.com grygielm gtlaw.com Subject RE PALM BEACH POST Epstein Mr Wyler we appreciate your candor in admitting your motion is premature EXHIBIT You must withdraw it as the motion has no basis which you acknowledge because the court has yet to address the merits of the dispute Please do so without further delay Thank you From Douglas Wyler doug.wyler comcast.net Sent Friday September AM To Mendelsohn Stephen A Shld-FTL-LT MendelsohnS gtlaw.com Cc Boyajian Nina Shld-LA-LT BoyajianN gtlaw.com Grygiel Michael Shld-ALB-LT grygielm gtlaw.com Subject Re PALM BEACH POST Epstein EXTERNAL TO GT Mr Mendelsohn I spoke with my client we will not withdraw our motion for attorneys fees Again we insist that the motion for summary judgment be heard first as it would be premature to have an attorney fee hearing when there is no prevailing party and no substantive hearings held since the motion for fees was filed Being that we are unable to agree on the order of the motions to be heard I am filing the attached motion to set case management conference Please see the attached available hearing times for this motion and let me know what works best for you so we can resolve this matter Sincerely Doug Wyler Esq Jacobs Scholz Wyler LLC Gateway Blvd STE Fernandina Beach FL fax doug.wyler comcast.net Please be advised that this e-mail and any files transmitted with it are confidential attorney-client communication or may otherwise be privileged or confidential and are intended solely for the individual or entity to whom they are addressed If you are not the intended recipient please do not read copy or retransmit this communication but destroy it immediately Any unauthorized dissemination distribution or copying of this communication is strictly prohibited From MendelsohnS gtlaw.com Date Wednesday September at AM To Douglas Wyler Esq doug.wyler comcast.net Cc BoyajianN gtlaw.com grygielm gtlaw.com Subject PALM BEACH POST Epstein Mr Wyler please let us know if the State Attorney will withdraw its sanctions motion without prejudice Thank you If you are not an intended recipient of confidential and privileged information in this email please delete it notify us immediately at postmaster gtlaw.com and do not use or disseminate the information A A 4A E0 A4 DE a qr?q rq qrCX HhL Kg lg d?a d6U a M3 flW y??S m/y t0 I 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