ON BEHALF OF MOTION INTERVENERS PLEADING SPENCER KUVIN ESQUIRE PGA Blvd Ste Palm Beach Gardens Florida June Palm Beach County Courthouse West Palm Beach Florida Beginning at oclock a.m SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER BE IT REMEMBERED that the following proceedings were had in the above-entitled cause before the HONORABLE JEFFREY COLBATH one of the judges of the aforesaid court at the Palm Beach County Courthouse located in the City of west Palm Beach State of Florida on June beginning at oclock a.m with appearances as hereinbefore noted to wit THEREUPON THE COURT Epstein MR GOLDBERGER Yes your Honor THE COURT Let me call up the State of Florida versus Epstein Lets have everyone announce their appearance please name on the record MR CRITTON Robert Critton and Jack Goldberger on behalf of Mr Epstein as well as Barbara Compiani from the office of Jane Walsh MS SHULLMAN Deanna Shullman of Thomas Locicero and Bralow on behalf of the Palm Beach Post MR KUVIN Spencer Kuvin on behalf of the intervener MS BURNS Barbara Burns on behalf SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER of the State of Florida THE COURT Thats it MR CRITTON Thats it its a wrap THE COURT Okay Orders Whos not here that I have to mail it to MR GOLDBERGER Mr Edwards is not here your Honor THE COURT Okay Mr Berger Mr Edwards Did I give you enough copies of the order MR GOLDBERGER I ran out I have just enough Do you want me to get a copy to Mr Edwards THE COURT Yes if youd mail a copy to Mr Edwards I got spares if anybodys interested Anybody need a spare MR GOLDBERGER Were good your Honor THE COURT All right Motion to Stay Mr Goldberger MR GOLDBERGER Thank you your Honor THE COURT Mr Critton MR CRITTON Good morning Judge Colbath do you have a copy of our Motion SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER to Stay THE COURT I do the one that was handed up to me yesterday MR CRITTON Yes sir and I have a proposed order in the event the Court chooses to grant may I provide that to the Court as well Your Honor as you know Mr Goldberger and I represent Mr Epstein We have hired Ms Walsh and Ms Compiani as appellate counsel to assist in the filing of a writ of certiorari I know that comes as no surprise to the Court in that whoever prevailed and lost yesterday I think the Court recognized we probably filed a writ of certiorari THE COURT Let me ask real quick Anybody objecting to the defendant having the ability to have my decision reviewed by the appellate court before I release these things I mean it seems pretty straight forward MS SHULLMAN We have an objection your Honor to some extent The you know the procedure in place here is very SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER similar to that for which they would have to obtain a preliminary injunction THE COURT Right MS SHULLMAN So to demonstrate likelihood of success and irreparable harm I dont think they can do that I think the plan that you put in proposed yesterday is a good one that is you redact and you release on Monday and that gives them today and Monday to get to the Fourth otherwise were stuck in a position where we have a 30-day window to appeal and we are all delay delay delay THE COURT What if I do that I dont know if its a difference with that or distinction but procedurally I was thinking I was leaning yesterday towards issuing the order that I just issued I think that thats a fairly accurate rendition of the written version of my oral pronouncement yesterday but I order that nothing that the redacted orders not be released until Ill make it you know five of five Monday That will give you Monday to get down to the Fourth to get SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER them to stop this from being released what do you think MR CRITTON Heres what the problem is Judge is Ms Compiani and Ms Walsh spoke to them yesterday and today we need a transcript from the hearing yesterday which has not yet been obtained They need the underlying motions they need some time to research Its not a matter of simply filing a writ of petition and that stays the release of the order There would have to be a separate motion that would be filed with the Appellate Court The Motion to Stay that we file under Appellate Rule subsection A it provides that the party that seeks review shall come to the lower tribal which is the trial court which is you in this instance and then its within your discretion either to stay or not to stay under the circumstances and we simply dont have the time within which to file the appeal under those circumstances There are two criteria that have to be met here one is the likelihood of SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER harm where no stay is granted and the second criteria not necessary mutually exclusive that is you dont have to have both of them but you certainly have to give an indicia of both of them The second one is the likelihood of success on the merits We believe that based upon the Court decision respectfully that the Court that the Appellate Court will quash your order for the reasons Judge Puccillo was the one who requested that the document in this this was argued yesterday so Im going to be very brief She is the one who requested post sentencing that the document be filed under seal It was her request that the defense seceded to that under the circumstances That certainly was inadvertent could have just as easily remained under seal with Mr Goldberger or with the State Attorney under those circumstances Secondly that it relates to the portions of it specifically within the MPA to deal with the grand jury proceeding SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER that would be a violation of Federal Rule Six I note you just handed us your order about two minutes ago Judge so no ones had an opportunity to review it certainly appellate counsel has not had an opportunity to review it I dont know if you dealt with the appellate rule but I do note that within your written order that you basically said that in the second to last page you said this order is no way to be interpreted as permission not to comply with U.S District Court Judge Marras previous orders We respectfully submit that it would not comply with Judge Marras previously issued orders We also believe that the supremacy clause as Mr Goldberger argued yesterday in conjunction with comity principle that we think that theres a substantial likelihood on success of the merits on this With regard to the likelihood of harm this is a paramount issue here Its undisputed that this was a confidential agreement Its a confidential contract SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER between Mr Epstein and the United States United States vigorously defended Mr Edwards when he came into federal court and filed an action to have the MPA released Judge Marra subsequently entered an order Another attempt that was made to make the MPA public again All plaintiffs counsel has it The only ones that dont have it is the Post under the circumstances and public under the circumstances but all the plaintiffs lawyers of the alleged victims they either have the MPA and the addendum which I will refer to as the MPA or they have the ability to get that That is very clear from Judge Marras order So theres certainly no harm to the plaintiffs from under these circumstances And the harm in this instance is only to Mr Epstein under the circumstances because as Judge Letz phonetic once said its very much like an attorney/client privilege or a privilege document where once the proverbial horse is out of the barn you cant get him back in SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER We cited a case called Mariner versus Baker So So.2d First District In the Mariner case this was not a usual incident report and the Court I know your Honor previously did a great deal of personal injury work and related work youre very familiar In fact you commented yesterday and said I dont see how the MPA is going to be admissible in a civil proceeding anyway Again youre not ruling on that ultimately the judges in both the State and federal court cases will do that In the Mariner case the judge ordered that the defendants object at the direction of incident reports The judge said sorry youve got to produce those incident reports And the Court said give them to me under seal because again we are talking about incident reports as distinct from an agreement between two parties which was deemed to be confidential between the United States government and Mr Epstein Only irreparable harm here as to Mr Epstein because if its released SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER you cannot remedy that harm on appeal And in the Mariner case if the judge said if you put the documents under seal which is exactly the situation we have now is I will grant the stay and let the appellate court determine whether or not incident reports which have a much lower threshold for production or for discovery reasons and again theres no harm in an instance like that even in an incident report came out in the Mariner cases so what It wont be used you cant use any of the information you obtained In this particular instance because it is confidential there is no way the Court can remedy the harm With regard to the defendants in this case again I think weve demonstrated both irreparable harm and we believe a substantial likelihood on the success Again how do you demonstrate a substantial likelihood on the success The fact that we would if this Court thought that we should prevail my guess you would not have ruled as you did but as the Court is SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER aware oh surprise to all of the lawyers here Sometimes judges get reversed I know thats a shock to most of the lawyers in this room and most of the courts but that happens on occasion and therefore we believe we can show through the supremacy clause the grand jury reference that we will prevail and that your order will be quashed With regard to alleged harm by any other party the Post in this instance reported at the sentencing of Mr Epstein on or about June 30th of They waited until June 1st of This was such a pressing issue the Post wanted to get this desperately out to the public they were so anxious to do it that they waited months before they did anything Mr Edwards who is not here today filed a federal court action and those issues were talked about and discussed at some length with regard to Judge Marras two orders Judge Marras rule you cant get them if you want to get them go to that SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER case that would be Judge Hafele or two of Mr Edwards cases are where is Mr Kuvins case is or Judge Marra where Mr Edwards case is Judge Marra can certainly control whether or not they should be released and Ive covered Mr oh and Mr Edwards because he could have gone back to Judge Marra because hes got one federal court case did he try for that form and get it no they came in here He tried to do it in a run around Judge Marra He didnt file his motion until late May of My guess is it was Mr Edwards who probably said to the Post gee why dont you join in this you havent been here for months why dont you come in now maybe intervene And then Mr Kuvin on behalf of his client estate court case came in on June 11th again almost a year to the date after Mr Epsteins sentence Its no burning issue theres no fire here to put out giving us days or at least a reasonable period of time to file petition for writ and then if the SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER Court denies our stay at least asking the appellate court for stay under the circumstances Theres no harm to them The harm is only to Mr Epstein and we think as a substantial likelihood that we would succeed Therefore we would request the Court grant a stay as Ive suggested in my proposed order for days of giving Ms Walsh and Ms Compiani an opportunity to actually do their job under the circumstances so the court reporter doesnt have to work over the weekend to expedite transcripts for us and secondly if we file within the days then let the appellate court determine whether or not the stay remains or not THE COURT Thank you much Ms Shullman dont worry about responding to the issue of motive or seeking this relief or the timing of your request or partys request I dont think that bears upon the merits of either parties MS SHULLMAN The constitutional SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER right of access doesnt have a waiver provision your Honor THE COURT Well go ahead Let me hear Im on board so far with Mr Crittons version of Judge if you let it out you let it out so irreparable harm is kind of easy two-prong test I think that it is a I think hes got to jump over both hurdles I think hes got to show some likelihood of success If you want to spend some energy arguing that theres no irreparable harm you may do so but if I hand it out today and everybody gets to see it you cant fix that tomorrow MS SHULLMAN Sure THE COURT So I think theyve established that MS SHULLMAN Let me address that very briefly first your Honor to remind you in meeting this burden that they failed to meet yesterday they identified four interests which they liken now to the motion to stay to the four harms One of for the first three of SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER them they mentioned they have no standing to assert the compelling government interest the government didnt show up the imminent threat to the administration of justice again thats the governments issue The innocent third party privacy rights they have no standing The only one is hes not really articulated today its some sort of invasion of Mr Epsteins privacy rights Florida law is clear that those who are participants in crimes do not have privacy rights with respect to the facts and circumstances surrounding those crimes So unless Im going hear something outside of the context of Mr Epsteins criminal prosecution he has no privacy right in this agreement THE COURT Let me share with you what Im thinking about doing even at the conclusion of Mr Crittons presentation and that is deny the motion to stay but delay the release of the records in question until noon Friday That will give them a little bit of time to see if the SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER Fourth sees this case from a different vantage point a different light and maybe theyll look down and say oh Judge Colbath you missed it and you know stay the matter That will give them a reasonable amount of time to get the transcripts to go to the Fourth because Im a big fan of appellate review and making case law MS SHULLMAN And I understand your Honor if you are suggesting a week from today thats a little bit long Remember the status quo here we are in sort of a strange procedural posture because your Honor decided that the initial closure was improper but the recent request for closure was denied so instead of a status quo where we have a document that should be released its under seal where it shouldnt be so any moment that it is kept under seal is a serious deprivation of the public and the pres right to access which you have already determined they have we think you are correct of course so I would ask that any stay SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER MR CRITTON Shes pandering your Honor MS SHULLMAN I will say he respectfully disagreed with you so I think a week is too long I do this day in and day out I have spent many a weekend on these matters in my career If you want to give them till Tuesday Ill be kind but the Fourth will act quickly on this dont think that a weeks delay is necessary I think in fact it under minds the public purpose here I THE COURT All right Any other respondents want to go anything further MS SHULLMAN The State Attorneys office also advises me that Friday is a holiday and the courts are closed THE COURT Thank you for telling me that Friday is a holiday MR KUVIN July 4th THE COURT The day of the birth of our constitution MR KUVIN Good morning your Honor On behalf of intervenor obviously the Court is inclined to delay the disclosure SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER of this but under Rule if your Honor were to issue such a stay we would point out the provision of the rule which requires a posting of the bond We not only agree with your Honors ruling but we believe such appeal they are filing is absolutely frivolous and we are going to be requesting fees and cost for the filing of that appeal so as a result we are requesting a bond be posted if a stay of any type is issued in this case because of the fact that we want to make sure that our attorneys fee and costs are covered for the frivolous nature of the appeal And its dictated strictly in subsection A It gives the Court the authority It says A stay pending review may be conditioned upon a good and sufficient bond other conditions or both Therefore we believe your Honor does have the authority to issue such a requirement that the posting of a bond be issued THE COURT All right Thank you very much I will deny the motion to stay SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER I will delay the release of the documents until noon Thursday I will deny the request to compel the movant the defendant Mr Epstein to post a bond and Ill let the appellate court tell us and teach us what the law on this case will be Its always interesting how these cases unfold and come to us a little different than everyone else Now let me have the attorneys come up here and approach The following proceedings were held sidebar out of the hearing of the jury THE COURT I reviewed the two documents I didnt see any kids names in there Everybody was hinting the childrens names or the initials names I had my big black highlighter out I dont see anything worth redacting so MR GOLDBERGER Its the plaintiffs document that identifies the childrens names Its a letter to me actually THE COURT I was wondering if everybody thought there was something in there that wasnt in there SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER MR CRITTON Its a test of your skills your Honor THE COURT Youre right exactly One is page one through seven and the second one is just two pages thats not even signed by everybody MR GOLDBERGER While were all up here chatting there are references to other names up here THE COURT Yes Mr Goldberger and no one has identified in the document says these are people that are not going to be prosecuted Mr Kuvin made the argument that these are co-conspirators These are innocent people that have nothing to do with these proceedings to do with They have nothing MS SHULLMAN They have a standing THE COURT I will renew my ruling that I gave you yesterday and deny your request to redact those names out of there All right so Ill hang on to these till Thursday at noon and anybody that comes wants to come and get them I dont know if theres a mechanism for I stand on the SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER courthouse steps and pass them out MS SHULLMAN If there are no redactions to be made THE COURT No redaction MS SHULLMAN I would do an order directing the Court to release them and they may become unsealed need You dont MS COMPIANI Your Honor are you going to write up a written order denying MR GOLDBERGER Are you going to do that THE COURT Put together a written order MS SHULLMAN Denying the stay THE COURT Yes A denying the stay delaying the disclosure or unsealing of these documents until noon Thursday denying the motion for bond MR GOLDBERGER order quickly And youll need that THE COURT Yeah fax that and well get it signed quick today MR GOLDBERGER Are you forcing the SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER court reporter to work over the weekend so we can get a transcript MR CRITTON Thank you your Honor for moving us this morning Side bar conference held outside the hearing of the jury concluded SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER I I A THE STATE OF FLORIDA COUNTY OF PALM BEACH I SUSAN WIGGINS R.P.R Official Court Reporter for the Fifteenth Judicial Circuit Criminal Division in and for Palm Beach County Florida do hereby certify that I was authorized to and did report the foregoing proceedings before the Court at the time and place aforesaid and that the preceding pages numbered from to inclusive represent a true and accurate transcription of my stenonotes taken at said proceedings IN WITNESS WHEREOF I have hereunto affixed my official signature this 29th day of June SUSAN WIGGINS,R.P.R SUSAN WIGGINS R.P.R and OFFICIAL COURT REPORTER
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