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 F/Z V/j 1a qC KS u?v vZ O5 a qr rCX qC 0V I I dc rM?M rM 10Cy n??m?n k?o?h I A I w?!ac qr MCX 10Cy ITy qr M3 Ґ??1rA5R h?H?T3P K?z X?K H?o I Idc rM?M rM 10Cy f헊?f?Tz e?e:Aa I v"x i X5 EO5 5a r?q CX 9r Cy rq rqC M3 ş?:c p/p0 5H V)V 6T Y2 G5 qrM?r?qr?r9 q?10Cy rCX qr l1 X?l 3K fm?Q Z2f CX CX gT L??T 2E Cy 3P EM3 J4T L?h??M q?ᡚ?Y r??O?rJt CTX i P!e i I CTX rC YY I 1e 2j CTX X0T1i k3v Jh/e0h1 H(K W/Q0 CTX j?!k 5B r2 CTX A A A 4v z"p A A A0A?A AK CTX A A?!k CX qCX YCX i!d A fi8 l8 yuZ 6L pH m?c sP;0 6ZR Ni P0 0Q X(P0s s(s p0 Pp CTX qq dR B/J Va A N?q qr NEeD K?i N?M?qr EeD k??O d6 I I i i CTX GH FT I CTX U3 U3 U3 U3 S6 E"L I I I5K7C:I 9O U3 Cn qrr qr q??r?q 9qr CTX G5 qr CX rC l0 WS zN pf1 ODV8L?m jC1DxV CTX CTX A qr 10Cy rYY Ң??P?V CTX C"C rqM?rq?q?qr qr CTX YY Jb?C.y CTX CTX GG4 A A G5 C.C M??r 10Cy rq YY C?J?yO c/XE?lgF GM??H p?ݡG Dp9Oh CTX CTX CJ4 I J6 CJ4 CK qrrM?q qq 9/CX?o CX qYqr rC dd?Z c6S ttcx A CTX CTX 10Cy rq rqYY X?qiX:4 3J Db ZH uD-8 1g?BH I vS 7Oo7u E?K?O J6 UJP U0 UT??ʴ UT UT UT O(p U(u UF1 iZ qr?r CX CX Yr zKW:E A K5M P-M UW VW L1J KJ56 N/Q SQ rC 6J ߵl ߵl 5TZ w8ĥDG oj?K _4 N)?Y Hp pRqc?W26 vz?WBrz?ZB??3X H4 CTX A CTX X4 U5 P8 5D qr qr 10Cy qr YY Mo?ANp D01jJ 9F bzEV 4O 8V CTX O!o CTX KK AA qr A C5 qr rYY 1A?CC V9 a c?F CTX A G5 qr EeD?M CTX 9?rY 10Cy rq qY ȠX1 a f??B CTX 9F I CTX 6D N?qr rrqq qC O?J RmA??b"0 M?.F q?D B?G CTX CTX F4 d6P A F4 qr rYY 4G AV8 CTX UY UL0 U0 U0 U0 UF UF UFAGA UA UA UAL UL UL UL UL UL UL U7 U7 U7 U7 U7 U7 U7 2EH GTU U/U OUoU UV G1 CTX TUV 1G 7A UA UAL X7 U7 U7 U77XL UL UL ULLYX KTX 8Y GJ A UMAT UD 7M GVW GF10 MWA LL MPM M?M 4M XY qr qr qr NEeD 10Cy qYY E2 GH l1 Pd h3V g?KIq V5kL O65S d_xKKU vV 5H p1 Z6 CTX U0 U1 CTX U0 U1 A0 1D qr qr 10Cy YY K??Kl 1B AMwv 1K F1 KV yW Gd T?H CTX CTX I CK M?qr K?SK?PQZ I IRZX 8YCX 10Cy qr CX kv zg S5kB??a iG wA CTX U2 6Y CTX U2 6Y I K,,j j,s 6Y P!p qr 10Cy qr YY G?O 9K mSd X0 9r?yal 1d bY0 XNf??qN D?J CTX P!Z b!o C,C qrM 10Cy qr8 I fX2 9R lO KV CTX Oo CTX A qr r?qr rq YY Lsy7H4 C,6E IL CTX U3 CTX J,O3_3xx qrM?r q?CX Y9/C 9CX CTX Y10Cy CX CX CX YC YY FV uTl bEWa ȓjJ-8 Gc G??Q9E 9Wq CTX CTX Up i I A 9_ qr qr YY D.X 7s F??Y bc3_c iH CTX CTX A qr 10Cy YY EMq 7H AY mK9Z BY A2 P6L N7 CTX CTX a I I i qr rC CTX CTX 7O I FMM qr qr i I I3 CTX Z6 I L(K4 P:u Z6P CTX y8 attached hereto as Exhibit A On August Edwards filed his Renewed Motion for Leave to Assert Claim for Punitive Damages The renewed motion is identical in all material respects to the original Motion that this Court denied yet Edwards requests that this Court grant this Renewed Motion without having addressed corrected or adapted the glaring deficiencies therein that were previously explicitly rejected by this Court This Court specifically directed Edwards in meticulous detail as to how he was required to correct the procedural deficiencies endemic to the original Motion Edwards however has failed to either heed to this Courts Order or abide by the basic requisites to assert a motion to plead punitive damages For this reason as explained more fully below Edwardss Renewed Motion for Leave to Assert Claim for Punitive Damages must be denied and Sanctions awarded for Edwardss blatant disregard of this Courts previous ruling A This Motion was Already Denied by this Court as Procedurally Deficient Edwardss Motion for Leave to Assert Claim for Punitive Damages against Plaintiff/Counter-Defendant Jeffrey Epstein was previously denied by this Court yet he re-filed the identical Motion which must also be denied First Edwardss two-page Motion is comprised of an introductory paragraph and four short numbered paragraphs It cites neither procedural authority nor any law pursuant to which his request to claim punitive damages is permitted While the glaring absence of rules of civil procedure and case law in Edwardss pleadings is routine this Court has already ruled that it is neither tolerated by this Court nor accepted in a Motion for Leave to Assert Claim for Punitive Damages As such the same procedural deficiencies should not be permitted in his Because the Motions are identical with the exception of the Certificate of Service Date and addition of new attorneys Epstein will reference ach as the Motion and the Renewed Motion respectively Renewed Motion Next Edwardss Renewed Motion like his first Motion endeavors to improperly incorporate the record evidence from his previously-filed Motion for Summary Judgment the very same act that this Court has already ruled impermissible As this Court is aware Edwardss Motion for Leave to Assert Claim for Punitive Damages must prove to the Court an entitlement to plead a claim for punitive damages To properly do so Edwards must demonstrate a reasonable basis upon which to assert this claim See FLA R.C!v To establish a reasonable basis both this Court and the Florida Rules of Civil Procedure require a written summary of evidence complete with deposition testimony and affidavits as part of the motion for punitive damages Fla Civ.P This Court in denying the Motion explained to Edwards what is required under Rule to pass muster procedur?lly This Court declared Rule which is the rule on amended and supplemental pleadings was amended in two thousand I believe pursuant to Florida Statute to give guidance as to how you go about doing this And the footnotes to the Civil Rules of Procedure cites it to sic it says that subsection is amended to comply with the case of Beverly Beverly Health And Rehabilitation Services Inc versus Meeks And I have been applying this case before they actually incorporated it into the rules but that case specifically said it set up a procedure at least in the Third District for motions for punitive damages And Ill quote from paragraph I dont know what page it is here But basically says this and Ive been applying this in the past as well Accordingly it is and sha:11 be the practice of this Court to require a written summary of the evidentiary proffer with appropriate page and line citations deposition testimony affidavits need to be filed and served in advance of the hearing so the defendant will have a reasonable opportunity The motion doesnt do that See Transcript from July hearing page line page line emphasis added Because Edwardss Motion failed to provide a written summary of the evidentiary proffer with appropriate page and line citations deposition testimony affidavits the Court determined that the Motion was procedurally deficient and denied same Edwards repeatedly disagreed with this Courts assessment that his Motion did not comply with Rule of the Florida Rules o/Civil Procedure and of the Florida Statutes and in support of his assertion recited to the Court the introductory paragraph from his Motion arguing again that by referring to the previously-filed record evidence he incorporated that record evidence into this Motion for Leave to Assert Claim for Punitive Damages This Court flatly rejected Edwardss argument and cautioned Edwards that incorporating previously filed things into other documents is not acceptable procedure for any motion The Court further commanded Edwards to present each piece of record evidence in support of a particular motion contemporaneously therewith which he has still failed to do This Court directed Edwards to adhere to the following straightforward unadorned instructions I want you to make a motion pursuant to what I have just said I dont want any incorporated things you know You know when you incorporate-something else that doesn.t work for me I need it in frontof me I need the page line so I can read it as a motion Again Mr Scarola were going to do it my way Transcript from July hearing page lines The Court continued I want you to file your motion set it for hearing and Ill look at it And then it goes on to say that what happens is the other side okay this hasto be done at least thirty days at least this rule says thirty days before the motion before the motion is set for hearing To give the opportunity for the defendants to file something specifically in opposition page and line and that way I can compare and contrast Thats the way I like to do it Its very complex in these cases and you know I just do not have the ability to go back and do it So I want you to do that Transcript from July hearing page lines In response to the final instruction Edwards replied I understand the Courts Direction Transcript from July hearing page line owever as demonstrated by Edwardss filing of his Renewed Motion which contains the same glaring deficiencies the Courts admonition was disregarded Consequently Edwardss Motion must be again denied by this Court The Renewed Motion is Procedurally Deficient and in Direct Contravention with this Courts Prior Ruling Mandating Sanctions Edwards filed and served his Renewed Motion for Leave to Assert a Claim for Punitive Damages on August This renewed Motion however is the original Motion with which this Court took serious issue and flatly denied Word for word line by line this motion reads exactly as the previous Motion that was denied by this Court with the exception of the certificate of service date and the list of parties upon whom it was served Edwards with flagrant disregard for this Courts prior ruling irrefutably fails yet again to meet even the essential pleading requirements to wit Edwards fails to cite to proper authority in support of his assertion fails to prove an entitlement to a claim in punitive damages fails to provide a reasonable basis upon which to base an entitlement to a claim in punitive damages fails.to attach or file any record evidence on which this motion is based fails to provide a written summary of the proffered evidence fails to provide deposition testimony and fails to provide affidavits As such because the original Motion was denied for its failure to comply with the procedural requisites as delineated not only by the applicable law but also by this Court so too must this Motion Finally Edwardss filing of this identical Motion to Assert a C.laim for Punitive Damages that was already denied by this Court irrefutably corroborates that he completely disregarded this Courts Order mandating sanctions At the hearing at which Edwards was admonished for filing the Motion the first time Edwards acknowledged that he understood the courts explicit direction yet he failed to follow same See Transcript from July hearing page line A court has the inherent power to implement and enforce effective judicial proceedings pursuant to pretrial rules As such when a party fails to comply with a pretrial order a court has broad discretion in detennining sanctions First Republic Corp of America Hayes I So 2d Fla 3d DCA Rule of the Florida Rules of Civil Procedure likewise governs failure to comply with a prior court order and mandates that such failure may be considered a contempt of the court FLA C1v.P Here Edwards has not only snubbed this Courts order but also caused Epstein to incur unnecessary expense in both responding to his Motion and attending this hearing Accordingly Defendant Edwardss inapposite and patent disregard for this Courts Order mandates sanctions CONCLUSION Accordingly for all of the reasons delineated above and in reliance upon the applicable law cited herein and this Courts prior ruling Jeffrey Epstein respectfully requests that this Court yet again deny Edwardss Motion to Assert a Claim for Punitive Damages award attorneys fees in favor of Epstein as sanctions and such other and further relief as this Court deems proper olM Fla Bar No LAW OFFICES OF TONJA HADDAD PA SE th Street Suite Fort Lauderdale Florida facsimile Tonja tonjahaddad.com WE HEREBY CERTIFY that a true and correct copy of the foregoing was served upon all parties listed below via Electronic Service this October Jack Scarola Esq Searcy Denney Scarola et al Palm Beach Lakes Blvd West Palm Beach FL JSX SearcyLaw.com MEP Searcylaw.com JackGoldberger Esq Atterbury Goldberger Weiss PA Australian Ave South Suite West Palm Beach FL jgoldberger agwpa.com Marc Nurik Esq East Broward Blvd Suite Fort Lauderdale FL marc nuriklaw.com Bradley Edwards Farmer Jaffe Weissing Edwards Fistos Lehrman Andrews Avenue Suite Fort Lauderdale Florida bje.efile pathtojustice.com Lilly Ann Sanchez Esq LS Law Firm Four Seasons Tower 15th Floor Brickell A venue Miami Florida lsanchez thelsfirm.com Fred Haddad Esq Financial Plaza Suite Fort Lauderdale FL Dee FredHaddadLaw.com IN THE CIRCUIT COURT 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO CA JEFFREY EPSTEIN laintiff vs SCOTT ROTHSTEIN individually BRADLEY EDWARDS individually And L.M individually Defendants HEARING BEFORE DATE TAKEN TIME PLACE REPORTED BY HONORABLE DAVID CROW July a.m to p.m Palm Beach County Courthouse Dixie Highway Room 9C west Palm Beach Florida Kathleen Ames RPR __ EXHIBIT_A __ ORANGE REPORTING JEFFREY EPSTEIN Plaintiff vs IN THE CIRCUIT COURT 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO CA SCOTT ROTHSTEIN individually BRADLEY EDWARDS individually And L.M individually Defendants HEARING BEFORE DATE TAKEN TIME PLACE REPORTED BY HONORAB DAVID CROW J:llY a.m to p.m Palm Beach County Courthouse Dixie Highway Room 9C west Palm Beach Florida Kathleen Ames RPR ORANGE REPORTING APPEARANCES JOSEPH ACKERMAN JR ESQUIRE CHRI_STOPHER KNIGHT ESQUIRE OF FOWLER WHITE MR SCAROLA Good mo ning Your Honor MR KNIGHT Good morning Your Honpr THE COURT Okay Were here on Epstei versus Rothstein et al I want to thank the party that sent me the whole list of motions and I appreciate it very much And I did have a chance to go through most of the stuff and quite frankly its kind of hard to get my arms around this There is a lot to do My thoughts is to first kind of set-up a schedule to determine where we should go today in terms of starting in one place and where were going to go And seems to me the,first place to start is try to get the pleadings in order in erms of the-motions that are pending that have not.been ruled on Then I would like to find out I mean I read the at least the interim report from Judge Carney Is it Judge Carney And I want to find out what the status of all of that is And then I guess the best way to proceed unless somebody has a better alternative is to start with the motions in some type of chronological order But before that to kind of get an opening from both sides as to where.they feel or why they feel these various issues should be decided in their favor I know they are varied but just to give me some general background in terms of the case Having said that then unless somebody has a better alternative I would like to start with there is a pending ORANGE REPORTING motion to dismiss on the I guess its the second amended complaint MR ACKERMAN Its the 267amended complaint be the second complaint THE COURT Which I ve read in detail the motion Also I th nk pending is still the motion for punitive damages in regard to the counterclaim and I dont think there is any other motions pending in regard to the pleadings are there MR SCAROLA There are not sir no THE COURT Okay I mean I think Im here to talk about all of those so why dont we start with the motion to dismiss becaus.e that kind of gets the thing rolling so start there Its your 225motion Mr Scarola MR SCAROLA Thank you Your Honor With the Courts permission may I address the Court from a seate position today THE COURT Yes I pref er you do that MR SCAROLA Thank you._ Your Honor this case started out with a thirty page seventy-nine paragraph five count complaint that read more like a press release than a legal eading And was the source of substantial procedural di ticulty as a consequence of the imprecision with which an effort was made to roil Bradley Edwards in the Rothstein Ponzi scheme We have moved from that ORANGE REPORTING massive effuse press release to what is now a nine page single count abuse of process case The state civil remedy for criminal practices count gone The state RICCO claim gone Tpe fraud claim gone The conspiracy claim gone And a whole new abusive process claim has now been asserted very different from what we were looking at previously Indeed the.only allegation that attempts to associate Bradley Edwards with anything having to do with Rothstein is a claim that appears in Paragraph which says essentially because so many RRA personnel Rothstein Rosenfeldt Adler personnel were involved in the prosecutions of what were obviously very meritorious claims on behalf of the child victims of Mr Epsteins criminal molestations because so many RRA_personnel were involved in the prosecution Edward quote knew or reasonably should have known that his Epsteins case files were being shown and touted to investors Now no allegation that he knew or reasonably should have known that they were part of a Ponzi scheme but on the non sequitur assertion that because there were a lot of people involved in these very important very big cases Mr Edwards 225knew or reasonably should have known that someone was trying to attract investors to fund the prosecution of these claims The first element of a motion to dismiss relating to that ORANGE REPORTING allegation is so what A law firm has every right to raise funds to prosecute legitimate claims on behalf of its clients And if all Bradley Edwards knew which he didnt but we must take the allegations of the complaint as true if all he knew was because there were a lot of people involved in the prosecution of these claims he must have known that his files were being,shown to and touted to investors that certainly cant form the basis of any cause of action Lets take a look at what this complaint says Bradley Edwards did.that constituted abuse of process THE COURT Let me just say off the top here that I have one problem with the complaint because it lumps defendants together in numerous allegations without differentiating as to any of the defendants which one did what if any or all did MR SCAROLA Your Honor has anticipated one of the points that I would make and that clearly is one But even assuming that all the defendants did all of the things that are claimed to have been done by the defendants plural lets take a look at what they say Bradley Edwards did In the introductory 267paragraph they say that he is liable for abuse of process because of four things One he engaged in unreasonable and vexatious discovery within the context of claims that are never ORANGE REPORTING asserted to have been anything other than legitimate claims So one is unreasonable and vexatious discovery in the introductory paragraph not specified in any way The second is making unfounded all gations in his lawsuits on behalf of his clients who had legitimate claims The third is using improper investigative tools And the fourth interfering with a-non-prosecution agreement Now of those four generally described elements of wrongfhl donduct the only categoiy that could possibly involve process which means the filing of a complaint the filing of an answer to a complaint the filing of some pleading or a subpoena The only category that could encompass abuse of process arguably could be engaging in unreasonable and vexatious discovery And were going to 267look at what they claim the unreasonable and vexatious discovery was in just a moment We know from Para9raph that the claims were not initiated while Mr Edwards was an employee of RRA Paragraph tells us that he brought these legitimate cases settled for very large sums of money voluntarily by the plaintiff He brought those claims with him to the law firm So its not the filing of the claims themselves thats anywhere alleged to have been an abuse of process ORANGE REPORTING They dont make that claim Paragraph says the defendants embarked scheme to interfere with the non-prosecution agreement quote for the purpose of upping the stakes of the litigation Now the non-prosecution agreement is the agreement that Mr Epstein entered into with the federal government that allowed him what we and our clients or Mr Edwards clients contend was an improper and sweetheart deal But attempting to challenge uns 267uccessfully at least thus far unsuccessfully a non-prosecution agreement on the basis that the victims had a right under federal law to be consulted regarding that agreement which right was never afforded to them Attempting to challenge a non-prosecution agreement could not possibly be abuse of proce And to the extent that there might be some assertion that his was tortiotis interference in an advantageous business relationship the law is very clear and Im prepared to cite the cases to Your Honor if its necessary I dont know that this is going to be challenged That unsuccessful interference is not actionable interference A case calling Scheller versus American Medical International So the allegations about the non.;.prosecution agreement I suggest are an absolute nullity They cant constitute an abuse of piocess ORANGE REPORTING Lets go on to Parag!aph because thats where presumably an effort is made to set out what the unreasonable and vexatious discovery is Paragraph Sub-paragraph One talks about sking three airpiane pilots inflammatory questions during the course of the depositions of those airplane pilots Asking questions is not an abuse of process Asking airplane pilot questions cannot possibly have a causal connection to the damage that is alleged by Mr Epstein in this case Curious the damages have also changed dramatically We are now told that the damages constitute fees and costs incurred in.the underlying litigation any claim for which was released in the underlying litigation We will ask the Court to take judicial notice of the orders dismissal of the three underlying claims which require the parties to those cases to bear their own attorneys fees and costs Mr Epstein having stipulated as part of the settlement that he was going to bear his own fees and costs cannot claim as damages in this case fees and costs incurred in the underlying litigation if they could possibly form the basis of any claim of liability in light of the broad litigation privilege that exists in the state of Florida Let me address that very briefly If I may approach the bench I want to provide the Court with.a copy of the Florida Supreme Court decision in Echevarria ORANGE REPORTING E-C-H-E-V-A-R-R-I-A vs Echevarria That is the most recent Florida Supreme Court decision addressing the litigation privilege It contains an excellent discussion of the Courts view of the scope of that privilege And upon review of that case Your Honor will find that the Supreme Court has clearly and unequivocally held that conduct that occurs in the course of litigation is covered by the absolute litigation privilege The Court finds as a matter of public policy that it would be inappropriate to allow the assertion of independant claims for conduct that occurs within the course and scope of litigation That there are other available remedies including ethics complaints against lawyers involved in such conduct including contempt proceedings and the imposition of sanctions which appropriately can control that conduct And allowing the assertion of claims in independant actions for conduct that occurs in the course and scope of litigation would have an inappropriate and improper chilling effect So in light of that broad privilege anything and everything that is asserted to have occurred in the context of the underlying claims such as asking three airplane pilots inflammatory questions first of all does not involve an abuse of process And secondly is privileged conduct ORANGE REPORTING Next paragraph Sub.:..paragraph Two of Paragraph Notifying Epstein of an intent to depose his high-profile friends THE COURT Let me just ask you Iye not read quite frankly the Echevarria case but does it still stand for the proposition that for there to be a litigation privilege it must be related to the legal proceeding itself MR SCAROLA Yes sir THE COURT It cant be something like okay MR SCAROLA If I were to issue a subpoena to Mr Edwards for the sole purpose of causing him to miss an important business appointment where he was going to make a lot of money and Im requiring him to be in Court with no legitimate connection whatsoever to the litigation thats involved that could constitute an abuse of process One of the elements clearly is that it must be related to the litigation But any conduct that occurs in relation to the litigation is conduct that is protected by an absolute privilege There is a discussion of the Levin Middlebrooks case where the Supreme Court makes clear that were not just talking about statements made in the context of litigation but all tortious conduct that may be alleged So its a very broad privilege It covers exactly the kind of ORANGE REPORTING conduct that is alleged to have occurred here in Paragraph One which isnt conduct involving process in any case Paragraph Two notifying Epstein of an intent to depose his high-profile friends Telling somebody Im going to depose your friends isnt process Issuing a subpoena is process Serving the subpoena is process Notifying somebody that youre going to depose his 267friends thats not process Asking Epstein outrageous questions in his deposition Sub-paragraph number Three thats not process Sub-paragraph Four requesting records from the federal government regarding communications between the government and Epstein lawyers This is where the tortious interference with the non-prosecution agreement is alleged to have occurred because requests are made to find out about communicatiqns between Epstein and the federal government with regard to the very.criminal activity that forms the basis of the.civil lawsuits that Mr Edwards is legitimately prosecuting on behalf of the child victims of Mr Epsteins criminal activity clearly could not constitute abuse of process Paragraph Five quite frankly I just dont understand Paragraph Five reads the representative of the trustee for RRAs bankruptcy stated that there are ORANGE REPORTING thousands of documents involving RRAs employees and government officials including state and federal law enforcement authorities relating to Epstein What does that mean in the context of this abuse of conduct claim against Bradley Edwards It just doesnt make any sense I cant respond to it because I clearly dont understand it Six is requesting records from Dr Bard who it is claimed didnt treat Mr Epstein Well okay so what I guess 267one way to find out whether he treated Mr Epstein is to subpoen.a any records that he has about Mr Epstein Subpoenaing records from a physician is not an abuse of process outside the scope of the litigation privilege Paragraph Seven filing a second amended complaint alleging Epstein forced L.M to engage in oral sex Part of the litigation privilege clearly Attempting to depose celebrity airplane passengers Clearly within the course and scope of the litigation privilege in the absence of any allegation that this was entirely unrelated to the prosecution of the claims against Mr Epstein which allegation appears nowhere No such allegation appears anywhere Nine directing third-party subpoenas be used to obtain Epsteins prescriptions from pharmacies Now it doesnt say that the third-party subpoenas are ever ORANGE REPORTING issued but if we can infer that they were this is conduct that clearly falls within the scope of the litigation privilege Paragraph says that the defendants trespassed on Epsteins property and conducted surveillance bf him Now without getting into the truthfulness of those allegations which must be taken as true if.the defendants trespassed on Mr Epsteins property then there may be a cause of action for trespass There is no cause of action for abuse of process because somebody trespasses on your property There is no cause of action for abuse of process because somebody decides that they are going to surveil you Paragraph says that Mr Edwards tried to plead a RICCO claim So what And Paragraph says that he tried to freeze Mr Epsteins assets So what That does not constitute abuse.of process and to the extent it might be characterized as a use of proc ss in the context of the litigation on behalf of his child victims of Mr Epsteins repeated extensive criminal activity it is covered by the litigation privilege There are three elements of damage that are alleged Fees and costs in the underlying litigation which cannot constitute damages in this case And the installation of an enhanced security system which presumably may have some ORANGE REPORTING causal connection to 267the trespass on Epsteins property and the conducted su veillance of him but certainly has nothing to do with any abuse_of_process And the retention of security personnel for Mr Epsteins personal safety and to protect his property Now there is no possible causal 267connection between the alleged and privileged litigation misconduct and Mr Epsteins desire for privacy Another significant problem that this complaint faces is that Mr Epstein seeks to assert these claims by way of an amended complaint when he has repeatedly _and persistently refused to provide any relevant or material discovery as a consequence of the assertion of his Fifth Amendment privilege We have previously cited to Your Honor a number of cases a substantial body of case law relating to the sword/shield doctrine Mr Epstein is seeking affirmative relief I dont challenge the validity of his assertion of Fifth Amendment privilege There is no doubt in my mind that he faces the potential of additional criminal prosecution There are new claims that Mr Edwards himself has placed the defendants on notice that he is about to file so there is doubt about the fact that Mr Epstein faces additional potential criminal liability and has a right to assert his Fifth Amendment privilege against self-incrimination But.the case law is absolutely clear he cannot come to this Court sue Bradley ORANGE REPORTING Edwards and continue to assert his Fifth Amendment right as to matters that are relevant and material to the claims that he is attempting to.prosecute For for all of those reasons and if the applicability of the sword/shield doctrine is in any way challenged Ill address that in my sponse I dont know how it can be But for all of those reasons this is a complaint an amended complaint which can should and finally-must be released It must be dismissed Thank you Your Honor THE COURT Just one second Let me read something here MR SCAROLA The.motion to dismiss reaches those arguments through the incorporation of all of the arguments in the summary judgment THE COURT You must be some kind of psychic MR SCAROLA I anticipated that is where the Court was going The motion to dismiss Your Honor expressly incorporates the arguments that were made during the summary judgment hearing And clearly one of the principal arguments that was made in the summary judgment hearing was an argument with regard to the sword/shield doctrine I apologize for having intruded upon your thoughts THE COURT Go ahead MR KNIGHT Your Honor Christopher Knight on ORANGE REPORTING behalf.of 267Jeffrey Epstein And let me back you up as to where we are and why we are When we came into this lawsuit there was the original complaint which Mr Scarola talked about and Your Honor was allowing us to move forward with discovery before we amended the complaint which from day one we said we will be amending the complaint to plead the cause of action that we felt was appropriate We tried to go down that angle but plaintiffs I mean excuse me the defendants asserted privilege to pretty much each and every document which we will ever be able to get our hands on We did get some limited privilege logs which will come up in part of my argument which is talks about why the frivolity this motion to dismiss If they want to move for a motion for summary judgment on down the line if they have the facts after we get the document thats a horse of a different color But you asked us to first lets take the discovery Unfortunately between Mr Rothstein not being able to be deposed which we of course need to talk to Mr Rothstein about what Mr Edwards involvement was and their blanket assertion of privilege THE COURT Let me back up I dont I directed you to do discovery I think I questioned why there was never a motion to dismiss to the original complaint and I said but this is the complaint we have to ORANGE REPORTING deal with And I cant tell from reading this thing what in the world the cause of action is and it created a lot of problems in terms of what the scope of discovery was Without knowing what you are suing for its very difficult to figure out the scope of discovery and thats why I directed Mr Ackerman to file an amended complaint so we would be able to focus in on what is discoverable what isnt what the cause of action is and that sort of thing MR KNIGHT Correct And then we went forward with what we had to date which is a reasonable basis for abuse of process claim which has been made The complaint on its four corners meets all the standards which are required And these are the cases that are already cited in our briefing and the response is th Donna Della case which is the 4th DCA case out of and goes through the various factors which leads to what I must give you which is a little.bit of background so that you have it Mr Epst in came over to the Rothstein firm with three cases Excuse me Mr Edwards Mr Edwards came over to the Rothstein firm with three of these files After he got to the Rothstein firm Mr Rothstein Mr Edwards and others used the cases to pump up the Ponzi scheme The documents that we need and the privilege logs MR SCAROLA Excuse me Your Honor Im sorry THE COURT Thats not even alleged ORANGE REPORTING MR SCAROLA It is not alleged And I cannot allow counsel to make those kinds of statements in open court ih the presence of the press and leave them unchallenged Thats exactly what has repeatedly gone on in this case to besmirch Mr Edwards reputation THE COURT Let me stop you What Im concerned about with this complaint okay and what concerns me is that there are allegations 267that the defendants did this the defendants did this without specifying who did what to whom and why It seems to me if you are going to sue Mr Edwards or anyone else for that matter you need to be specific as to what he did or what you accuse him of before I I dismiss routinely complaints like this which generically say the defendant did something without specifying who did what to whom and why Because it does not spell out what your claims are I dont know what Mr Rothstein did What Mr Edwards did Or and you also say and others Who I dont know who they are And the other problem I have with it aside from I think there are some other issues but your prayer for damages is specific as to some things but also has that that that phrase that that we all you know perk up our ears on including but not limited to which leads me to believe there is something else there that youre claiming in terms of.damages which is not in fact spelled out in ORANGE REPORTING the complaint And if there are in fact special damages I think they have to be pled as compared to general damages So I dont know whether-youre asking for and it makes a big difference ultimately what what if we get to the point of the discovery issue what the defendants can get from the plaintiff and vice-versa I mean if youre claiming damage to reputation lost profit I dont know what it is you"re claiming I dont know what including but not limited to means quite frankly MR KNIGHT Your H_onor let me break these down THE COURT Okay MR KNIGHT You brought up the subject early on about lumping the defendants together and there was an early paragraph which did so The Paragraph which Mr Scarola went through is going through allegations relative to Mr Edwards and if it needs to be divided out relative to Rothstein and Edwards we will do so as it relates to damages The law under abusive process is even nominal damages are enough to survive for a cause of THE.COURT Dont misunderstand Counsel I dont disagree with that proposition that you allege damages that you claim are a resuit of this What Im concerned about is you have thrown in the kitchen sink in that which is included not limited does that mean you"re claiming other damages or not claiming other damages I dont know what ORANGE REPORTING that means MR KNIGHT At this time.were claiming the three areas o"f specified dainages which we went into but the reason that catch-all is in there it goes back to this whole issue relative to the documents that we have been unable to receive We believe that there will be other damages that maybe would be asserted at that time If Your Honor is saying what he would rather have us do is once we get the documents amend again I fully understand We can do so But at the same time we dont want to be precluded from being able to move forward with our cause of action The abuse of process cause of action is spelled out in all four corners under the Della Donn4 decision and also the SCI Funeral comments relevant to it which have been provided in the earlier briefings Here at the motion to dismiss stage that is where we thats what the Court needs to look at as.we have discussed The areas relative to litigation privilege which Mr Scarola went at length into deals with tortious interference causes of action and do not deal with abuse of process It would be nonsensical for abuse of process to have a privilege because therefore you will never be able to bring a cause of action for abuse of process THE COURT Let me disagree with you I think that the litigation privilege.would go to any process ORANGE REPORTING served in the litigation thats relevant to the litigation doesnt give you the right to go out and subpoena the president of the United States in a case just to get for some reason unrelated to the purposes of the litigation So I mean there is I read these cases Unless this has changed the law At least it allows abuse of process in civil litigation if in fact the processes are not for a legitimate purpose MR KNIGHT If the unrelated areas are THE COURT His point was how can these be illegitimate I think is what his point was MR KNIGHT If thats his point but what I was taking he was using the cases of tortious interference THE COURT I dont think it matters what tort it is I think the litigation privilege applies whether its libel slander tortious interfere.nce you know abuse of process malicious prosecution all of those there is a litigation privilege associated with that And its a natural privilege Thats how understand the law I may be misquoting it but thats what I understood the law is MR KNIGHT Understood And the allegations which are in Paragraph go into some of those areas which are outside including Mr Edwards own deposition I mean in his lawsuit his clients were never on these ORANGE REPORTING airplanes yet they went_forward and took the depositions of these pilots et cetera on the airplane causing excess fees And really what this was being used for is to be able to gain information which could be used in the 267underlying promotion in the Rothstein cases And thats why I brought it up earlier when I was interrupted by Mr Scarola It is relevant to what were talking about today This is a matter where Mr Edwards deposition said I had very little contact with Mr Rothstein But at the same time we learn once we get to the privilege log and also the only time he dealt with Mr Jenny was when Mr Jenny who is the investigator approached him that they are claiming privilege related to we counted it up dealing with eighteen to twenty attorneys nine paralegals plus investigators MR SCAROLA Excuse me Your Honor I thought we were arguing the motion to dismiss and not the privilege issue MR ACKERMAN I am But Your Honors specific question I would ask.Mr Scarola to hold his arguments but Your Honors specific question dealt with what are these areas which are outside of the tort or whatever is being sued on And if those are being done for some purpose other than the underlying litigation which were the L.M and the Jane Doe and E.M cases here then ORANGE REPORTING that is abuse of process This is at the point of allegations without us being able to get discovery The allegations we have put into Paragraph in specificity especially when you get into Paragraph Four under under which deals with Mr Edwards going to the Court relative to what should be something relating to the three lawsuits that he has when what it really is undermine the non-prose ution agreement Whr is that relevant to abuse of process Well all that is being used for is to find a way to ramp up our client relative to other worries which are unrelated to the prosecution of th se individual victim cases so that he ends up having to be in a situation where he has to pay exorbitant dollars which otherwise would multiply what the amount the actual value of those underlying cases otherwise would be The complaint itself goes through all that is required under Della Donna THE COURT I presume in those underlying cases there were claims of punitive damages is that correct MR KNIGHT There are claims of punitive damages correct THE COURT Okay MR KNIGHT By the same thing even looking into that the efforts t_o freeze assets things like that There was no indicat.i,on at any point that Mr Epstein would be unable to cover whatever the compensatory damages and ORANGE REPORTING if punitive damages were ever to be allowed any type of punitive award All of this was done to ramp up these cases outside of these three which were the ones that Mr Rothstein and as we get through discovery _we believe Mr Edwards were _using to sell to the various investors to ramp up the Ponzi scheme They are tied together They are in the same firm These are the lawsuits that were used when the various investors came into the office with Mr Rothstein Mr Edwards_ is claiming I believe that I had no idea that this was going on with my lawsuits Although we know in the privilege log theyre claiming that hes dealing with the eighteen to twenty attorneys the nine paralegals and the investigators They just dont add up both ways But relative to what were here on today the motion to dismiss this amended complaint does plead a cause of action unde_r Florida law If Your Honor wants us to go back and plead with more specificity relative to where we put in defendants we will _do so I.would suggest it would be better for us.to be able to get the di covery And the reason we have so many people here is we have Mr Weinberg here to represent to talk about privilege issues Mr Ackerman to talk about various issues that may come up including sword and shield Get to those so that we dont constantly have to be coming back to the Court ORANGE REPORTING This complaint does plead a cause of action under Florida law and the motion to dismiss should be denied Thank you THE COURT Speak to the fact that some of these things I I mean I understand how even though they ask you the question in and of itself may not be abuse of process The actual subpoenaing somebody and then asking of the questions may be abuse of process at least in my view If in fact the only purpose of doing that is to like you have alleged here to somehow or another for illegal purposes or for improper purposes But there are some of these things that youve alleged here I dont know how ever could be abuse of process Like notifying somebody that they intend to.do something how could that possibly be abuse of process Or saying or how can investigation be an abuse of process or surveillance be an abuse of process Thats not using the process of the Court for anything Maybe Im missing something Or what does this mean the representative of the trustee for RRAs bankruptcy stated there are thousands of documents involving RRA employees and government officials including state and federal law enforcement authorities relating to Epstein What does that have to do with abuse of process MR KNIGHT That one THE COURT Let me finish and then you can ORANGE REPORTING respond MR KNIGHT Yes sir THE COURT Why is making an allegation in a well I guess that could I can see that Attempting to discover information You know its like what Im getting at do you have any case law that says abuse of process can be not actually issuing process but thinking about it or threatening it or something like that MR KNIGHT The Della Donna case doesnt go into investigation The privilege issue really comes up as an affirmative defense Your Honor and thats what the cases say also THE COURT Im not talking about privilege MR KNIGHT it relates to these allegations though if some of them can be taken apart to say well this one could be connected back to the process i.e the pilots being deposed et cetera and the other one is more flavor for the complaint But to be able to spell out this complaint so the Court can understand where we"re eventually going because we havent had these documents I think putting that into the pleadings is the correct thing to do so that the Court can understand the complexity of this and whats involved and why we need to find out more so that we can get into the specifics Clearly we have enough for abuse of process Whether or not some of these ORANGE REPORTING individual paragraphs would not survive or individual sub-part As or Bs you may correct But I think the Court needs that in the amended complaint to get the overall flavor of what the abuse of process cause of action is THE COURT That may be But what youve youve alleged these as specific acts of abuse though You dont allege this as some kind of background or context or something like that MR KNIGHT And we did we allege it but I understand Your Honors point saying how is that connected to the process because they did go forward and actually THE COURT It says MR KNIGHT they didnt serve the celebrities they just threatened to serve the celebrities THE COURT Im just reading what you said This is not my words It says the defendants made illegal improper and perverted use of the process by utilizing unreasonable discoveries unnecessary discovery or threatening to take discovery and then you list And some of these it seems to me are not actionable as a matter of law the way youve pled it anyway I mean maybe MR KNIGHT I think Your Honors point is that it should have been more to the general allegations of the preamble rather than the specifics ORANGE REPORTING THE COURT Im also concerned about the fact that youve lumped all the defendants together in one two defendants I guess toget_her without specifying which did which And I understand its kind of a chicken before the egg egg before the chicken MR KNIGHT Chicken or egg or cart before the horse Your Honor its all the same thing When we look at these privilege logs we see the involvement of so many people and the Court rightfully said lets try to amend the complaint Now we did the best we can with the facts we have but they are still playing this we;re not going to give you anything defense which puts us you know in a position where certainly they should not be able to take that as an advantageous position and now say oh lets go ahead and dismiss this complaint and well still hide all of these documents from you we 267havent given Certainly these documents many of them are waived Many of them.are privileged on their 267face et cetera We want to know the who the how the when And then there could be additional abuse of process allegations in there with more specificity but at it relates to this complaint itself it has enough of the four corners to survive the motion to dismiss THE COURT Anything further MR SCAROLA Yes sir Your Honor What we have heard is indeed a cart before the horse argument We ORANGE REPORTING filed this fective complaint because we havent gotten the discovery that will enable us to file an appropriate complaint You need to have the basis to sue first And you need to state a viable cause of action first You don"t excuse obvious defects in your pleading on the basis that you havent yet gotten the discovery that you hope is going to provide a basis for some cause of action and I dont know what it is What Echevarria says is quote,.in the Levin case the 11th Circuit certified a question to this Court asking whether Floridas litigation privilege protects the acts of certifying to a trial Court an inten to call opposipg counsel as a witness at trial in order to obtain counsels disqualification And later failing to subpoena and call that person as a witness 267from a claim of tortious interference with a business relationship Answering in the affirmative we extended the litigation privilege to all torts finding that absolute immunity must be afforded.to any act occurring during the course of the judicial proceeding regardless of whether the act involves a defamatory statement or other tortious behavior And heres the qualifications that Your Honor referenced earlier So long as the act has some relation to the proceeding There is no allegation anywhere in this amended complaint that any of these acts had no relation to the ORANGE REPORTING pending claims against Mr Epstein which most clearly included claims for punitive damages And the fact that airplane pilots are not asked a single question about the particular victim in the cases being prosecuted doesnt mean that what was going on on those airplanes on a routine basis that formed part of a pattern of criminal activity on Mr Epsteins part was not relevant and material to the punitive 267damage claims that were being investigated and prosecuted legitimately by Mr Edwards The fact that he took an aggressive thorough approach on behalf of his clients And took discovery reasonably calculated to lead to admissible evidence And there is no allegation that any of this discovery was not reasonably calculated to lead to admissible evidence those allegations do not appear without specifically alleging the exception recognized by the Florida Supreme Court this complaint fails And it is no excuse say maybe Im going to find some evidence somewhere that allows me to assert some legitimate cause of action if you allow me to proceed with discovery on a case on a pleading that does not state a legitimate cause of action We start hearing again about the theory of damage that no longer appears in this complaint That is Mr Epstein had to pay more to settle these cases than he otherwise would 267have had to to settle these cases if Mr Edwards ORANGE REPORTING werent out there putting all of this pressure on him Well thats thats Mr Edwards job to maximize the value of his clients claims by putting as much legitimate pressure on the defendant as he possibly could and he obviously did an extremely effective job So this complaint clearly needs to be dismissed on all of those grounds that we have asserted And one thing that is not addressed at all in the argument that we just heard is the sword/shield problem that they have Now 267this is an ame 267nded complaint so we know the sword shield issue exists because weve already deposed the defendant Excuse me Weve already deposed the plaintiff THE COURT Let me tell you Scarola Im not going to dismiss the complaint based upon that at this stage The reason very simply is that we cant really know what the sword/shield doctrine applies to until I know what the lawsuit is about And I dont know what the lawsuit is clearly about at this point because theres certain things obviously that he can object to and Im not making that.determination at this point in time I am going to dismiss t_he complaint with leave to amend however I find some serious problems with the complaint Specifically number one that you have lumped together the defenqants and its not,_its not in my view not a not a basis to make vague allegations that are ORANGE REPORTING nonspecific to a particular defendant because you havent gotten some privileged documents yet Because you got to come out if you think this gentleman or anybody has made committed a tort then you have to allege it and then you get to the discovery that you want The abuses of process if they occurred in this case occurred Theyre not privilege They occurred as part of the lawsuit Now Mr Edwards involvementor lack of involvement in some alleged Ponzi not alleged Ponzi scheme I guess its a fact its a Ponzi scheme by Mr Rothstein that may be subject to all of these privilege objections and how whether he was involved or not involved and what he did or didnt know and all of that kind of_ stuff But the process was in the lawsuits You have to know at this point in time what he did or didnt do that was an abuse of process I dont know how you cant know at this point in time because it either it was either calculated to do something with that litigation or it was abuse for that litigation MR KNIGHT Your Honor we will re-allege with more specificity Thank you THE COURT How much time do you need And its been a problem with this case from day one okay And I know Ive mentioned it several times before without ORANGE REPORTING getting knowing what it is that were litigating its very difficult to make decisions on all of these other issues you guys are talking about including sword and shield including privilege including whether or not you know Mr Edwards has to answer questions or Mr Epstein has to answer questions unless we know exactly what number one the claims are against what the abuses are And let me back up Some of these things the way youve alleged them at least in my view are not abuse of process as a matter of law The mere.threatening of doing something without doing it I dont unless you get a case that says that abuse of process I dont see how it is The others I think could be if theyre alleged 267properly If youre taking a deposition and asking questions in that deposition for the sole purpose of what you have alleged here or for the purpose unrelated to actually prosecuting the litigation then I think that can be abuse of proces But the mere notifying somebody I have trouble understanding how Paragraph Five is an.abuse of process I have trouble understanding attempting to conduct discovery Or I mean some of these I just dont see how actionable So I think you need to to plead it more specifically And also I think you need to specify The included ORANGE REPORrING but not limited to damages doesnt cut it If.you got special damages I think you have to plead them Now you can always amend if you find out there are other damages down the line that you have not claimed But see one of the issues in this case is going to what your damage claims are may have something to do with what discovery is or is not calculated to lead to admissible evidence in this case So Im granting the motion with leave to amend How much time do you need MR KNIGHT Thirty days Your Honor MR SCAROLA We would object to thirty days Your Honor This case has been going on for a very long time This is now a single count complaint Ten days ought to be more than adequate to get this filed THE COURT Well Im going to go ahead and give you thirty days to amend Okay The next issue I guess on the MR ACKERMAN Your Honor Ive got some blank orders on all of the motions Do you want THE COURT Well Im going td ask you guys to fill them out for me It would make it easier for me Okay MR ACKERMAN Okay THE COURT The next one is the motion for ORANGE REPORTING punitive damages on the counterclaim is that MR SCAROLA Yes sir THE COURT Let me I dont want to take your 267time Mr Scarola and let me tell you what Im going to do on that Im going to deny the motion I already heard an argument on it I already read some of the materials And heres the reason Im denying the motion at this point and its without prejudice The rule and I think its Rule Is that it Was yeah which is the rule on amended and supplemental pleadings was amended in 267two thousand I believe pursuant to Florida Statute to give guidance as to how you go about doing this And the footnotes to the Civil Rules of Procedure and this is a problem we had before this rule came out cites to it says that subsection is amended to comply with the case of Beverly Beverly Health And Rehabilitation Services Inc versus Meeks And I had been applying this case before they actually incorporated it into the rules but that case specifically said it set up a procedure at least in the Third District for motions for punitive damages And Ill quote from paragraph I dont know what page it is here But basically says this and Ive been applying this in the past as well Accordingly it is and shall be the practice of this Court to require a written summary of the evidentiary proffer with appropriate ORANGE REPORTING page and line citations deposition testimony affidavits need to be filed and served in advance of the hearing so the defendant will have a reasonable opportunity The motion doesnt do that MR SCAROLA It does sir respectfully THE COURT I pulled it The one sitting here doesnt have it MR SCAROLA May I call the Courts attention to the very first paragraph of the motion that says the counter-plaintiff Bradley Edwards moves this honorable Court for an entry of order granting him leave to assert a claim for punitive damages against the counter-defendant Jeffrey Epstein And in support thereof would show that the record evidence presented to the Court.in support of Edwards motion for summary judgment satisfies every statutory prerequisite for the assertion of a claim for punitive damages That summary judgment motion if Your Honor recalls includes an extremely detailed recitation of record evidence.and specifically cites to page and line numbers in supporting depositions to specific paragraphs in supporting affidavits and clearly by virtue of what is presented to the Court and incorporated by reference every conceivable 267requisite for a proffer is included in that incorporated summary judgment motion Now if what Your Honor wants us to do is to give you ORANGE REPORTING that summary judgment motion back again and change the title on the summary judgment motion to say now its a proffer THE COURT I want you to make a motion pursuant to what I have just said I dont want any incorporated thipgs you know The same thing with your motion to dismiss You know when you incorporate something else that doesnt work for me I need it in front of me I need the page line so I can read it as a motion MR SCAROLA Do you really want that box of material back again THE COURT I got the box I saved the box I knew this was coming I got the box I need your motion I need it to be specific because your summary judgment motion dealt with a lot of other stuff too not just with the evidence for punitive damages Okay And the other thing was that the summary judgment motion if I recall right one of the reasons I denied the motion was discovery not being completed at this point if I recall MR SCAROLA _I think that was the only reason that Your Honor denied the summary judgment motion which obviously would not be any legitimate opposition to a motion to assert a claim for punitive damages THE COURT Again Mr Sc_arola we re going to do it my way ORANGE REPORTING MR SCAROLA I understand THE 267couRT I want you to file your motion set it for hearing and Ill look at it And then it goes on to say that what happens is the othe side okay this has to be done at least thirty days at least this rule says thirty days before the motion before the motion is set for hearing To give the opportunity for the defendants to file something specifically in opposition page and line and that way I can compare and contrast Thats the way I like to do it And it makes its easy when you have an alcohol related case or something like _that Its very complex in these cases and you know I just do not have the ability to go back and do it So I want you to do that MR SCAROLA I understand the Courts direction THE COURT So thats without prejudice and file your motion Okay Now having said all of that where are we in terms of the trustee and bankruptcy and Judge Carney and where are you at Because I read his order and his order seems to say I agree with Judge Crow has to control the discovery in this case but it runs the risk of having conflicting orders And I kind of agree with that as well So where.are we at in terms of discovery with the trustee MR ACKERMAN Well we need to back up a little ORANGE REPORTING bit THE COURT Okay MR ACKERMAN Okay Your Honor when this matter started and I know youve heard some of it but because its been awhile I would like a little latitude THE COURT Sure We got the day so Im here MR ACKERMAN Initially when this.case began the prior law firm representing Mr Epstein issued a subpoena to the bankruptcy trustee that was in possession of records that we believe were related to this lawsuit Okay That met were relevant to the claims that had been pled At that time Mr Scarola did not object to the issuance of the subpoena and I have that here Okay When the subpoena was serve on the bankruptcy trustee we then had four or five qr six motions filed on the grounds of privilege And since the bankruptcy trustee controlled and was directing those matters before Judge Ray a special master was agreed by the party to be appointed Now also at that time and this is going to come up in answer to one of these other motions one of the other creditors razorback had also subpoenaed substantially the same amount of documents Substantially subpoenaed the same.documents that we had subpoenaed And it was their understanding that they were going to be participating in this proceeding with Judge Carney Now each time we got ORANGE REPORTING up to a deadline there was an order order given to the Farmer firm and Mt Edwards to prepare a privilege log They were given numerous extensions THE COURT Just so I understand The Farmer firm is now where these cases are at or went to after the Rothstein MR ACKERMAN Thats correct And 267thats where Mr Edwards is now And they had lodged.only privilege objections as to attorney-client and work-product materials as to this subpoena When the.special master was appointed we began a series of meetings and hearings to try and deal with these special master issues And what that ultimately culminated in was an agreement a confidentiality agreement where Mr Scarolas clients would produce approximately five boxes of documents that were designated work-product attorneys eyes only which meant only the lawyers for Mr Epstein could look at them And what they designated to be irrelevant documents which they believed had noth_ing to do with the case but felt that it was easier to produce them and put them under a confidentiality order so and those were allowed to be shown to our client Now if any of the parties believed that any of those documents were relevant or appropriate to be used i this proceeding they were to take that to the special master THE COURT You say this proceeding you mean my ORANGE REPORTING proceeding MR ACKERMAN This case your.case Okay And they were to be gone to the special master Now about that time we were arguing the motion for summary judgment Counsel for Edwards had argued to Judge Ray that wait until the summary judgment motion is argued defer ruling All of those were denied At one point they had asked you to pull back the subpoena that had been issued on these matters and you denied that So then they prepared a privilege log that was clearly its in our binder There is two privilege logs THE COURT Fortunately I looked at it MR ACKERMAN The firs one clearly doesn"t meet any requirements regarding the privilege log so we filed motions directed to that The special master ruled that you have to at least identify the people on it We felt that the log was also inadequate okay for other reasons And so the special master ordered a master list of the people a master list prepared which is here that identified who the people were Okay And in the meantime Razorback went ahead and filed a motion before Judge Ray to participate in this special master hearing Then we came in court on a hearing.filed by a non-party who Spencer Kuvin had argued that since he was ORANGE REPORTING identified on the privilege log as receiving some of these documents he was going to assert a joint prosecution joint defense.type of privilege Now when we were at that hearing at that point in time the special master had generated his report The special master had set up a time when we were go.ing to go through he was going to go through the documents with everybody in the room and at least eliminate the ones that are obviously not privilege which you can do by looking at this log I mean one can do okay by obviously looking at it And then we were going to break them down into what issues related to what privileges because there was different standard of proof that related to the different privilege For example its the burden of the plaintiff to establish the joint defense agreement and we were going to do that Now as that was occurring Mr Kuvin came in and argued his position and the Court was stating its position that you were in charge of the privileges which we agreed And that you were in charge of discovery okay And you put a stay on any discovery to the special master and it effectively shut down the special master I mean you put a stay on any subpoenas to the bankruptcy trustee THE COURT From this Court MR ACKERMAN From this Court THE COURT I didnt do anything to anybody else ORANGE REPORTING MR ACKERMAN No You did from subpoenas issued from this Court _THE COURT It could have only been your subpoenas or Mr Scarolas subpoenas MR ACKERMAN Correct THE COURT Somebody read my order otherwise They can continue with any other MR ACKERMAN No no Im not saying that THE COURT Okay Im sorry MR ACKERMAN I said that what Im trying to say your stay applied to subpoenas issued from this Court to the bankruptcy trustee THE COURT Right MR ACKERMAN Okay And that point in time we were at the point in time.where you said we were in the midst of the hearings that dealt with the amended complaint and that you needed to have the complaint done And we had previously told you that we had we believed we had a good faith basis for this complaint We could demonstrate that Rothstein was definitely guilty of a crime We could demonstrate definitely that the Epstein case files were shown to investors for the purpose of getting money that ultimately came in to the Rothstein firm We can show that Mr Rothstein and some of these are in the complaint Im not re-arguing that but we could show at that time that ORANGE REPORTING Mr Rothstein made specific representations to these investors about what he could do And then we can show that Mr Edwards carried those out And that Mr Edwards testified in his deposition that it was a very limited number of people involved And then what in fact occurred was that Mr Rothstein was meeting with Mr Edwards and the rest of the firm on this and they were having meetings about it thus providing the link to the theory of our cause of action as the abuse of process And the theory of abuse of process related to a misuse of the judicial system The use of these proceedings for some other purpose that purpose to further this Ponzi scheme It meant going after his friends individually Putting taking steps and taking actions that had nothing to do with those those victim cases Now at that point in time we had subpoenaed the communications between Rothstein and the various investors which is the first subpoena And the second 267subpoena related to the law enforcement subpoenas Because at that point in time for one respect Mr Edwards has subpoenaed and has requested were going to get to it later records between Mr Epstein and the U.S Attorneys Office He has used those records as part of a summary judgment proceeding We believe in the records that have been produced to us that they specifically particularly when ORANGE REPORTING you look at some of the items in the privilege log that 267they specifically undertook the course of action to further this Ponzi scheme to interfere with a non-prosecution agreement that had already been reached with the gover 267nment Okay Its not a tortious interference claim Its a claim where they were abusing the Court system by using discovery mechanisms to bring about a breach or get the government to come to regress or retreat from the agreement it had entered into it after Mr Epstein had pled guilty Had served his time Was on probation and already had substantial reliance and change of position on agreement And that was done we believe to show investors what they were doing to advance this Ponzi scheme So when we sent a letter a subpoena which is why that is in the pleading because its evidence relating to the interference This was a CVR case And that case was filed by Mr Edwards in okay At the time his cases were pending with Mr Epstein There is a long lapse of what occurred okay until these cases get settled And then he files a pleading in the federal court and he had represented in the underlying case that the documents he wanted regarding the law enforcement ocuments were necessary because they might lead to other discover 267able evidence in that case And then in the CVR case which is pending bef_ore Judge Marra now ORANGE REPORTING he said I finally got the documents I wanted for the CVR case So he in fact misrepresented to a magistrate why he wanted those documents So then there is an order entered by the magistrate that says any of the documents that were produced and I have a copy of it here any of the documents that were produced pursuant to that order cannot be used in any proceeding absen.t a ruling by the Court on those issues Now some of those documents have already been filed THE COURT The Court meaning MR ACKERMAN You THE COURT Okay MR ACKERMAN The sitting magistrate or judge for which the documents are sought to be used okay And those are some of the documents that are in the summary judgment binders Okay And those were done for the purpose of being able to bring to make their summary judgment argument Now when we got to that stage in April based on the Courts ruling we the special master proceeding stopped We indicated to the Court at that time that we believed that on its face some of these matters in the privilege log the Court can look at and rule on and determ ne that they were not privilege and they are not waived and we were going to request the Court to do that As far as Judge Ray ORANGE REPORTING is concerned the Court you have the ability to determine these matters yourself in terms of how it affects your case He is not going to be doing anything and he stated that on the record in one of the proceedings in the bankruptcy court that hes not going to be making an in camera review Hes going to allow you to handle that process okay I mean you as opposed to him ruling on the privilege issue is what Im trying to say Now thats pretty much where we are in terms of THE COURT Let me ask you a question before you proceed If there are other parties seeking these documents for which there was a special master appointed why did my order which merely stayed my subpoenas stop production of documents in the trustee if other people are seeking these documents for reasons unrelated to this lawsuit MR ACKERMAN Heres what happened Your order stopped it for us THE COURT I understand that MR ACKERMAN Okay And I have a copy of the pleadings if you need to see them But Razorback THE COURT I read the order I know what it says MR ACKERMAN Razorback went in there and said we want to do a exam of Rothstein and we want these ORANGE REPORTING records And the records are substantially the same as the ones we wanted They filed a motion to clarify this in front of Judge Ray okay And this is where one of the issues came up that he was not going to be ruling on stuff that related to you And I have in the binder there the transcript of the hearing where Scarola and his clients agreed to produce the documents that they are now claiming privilege on and have produced those documents to Razorback So the documents that were seeking here for which they cl.aim privilege for which we have a confidentiality agreement they have produced voluntarily to a third-party We believe theres a 267waiver We believe that invalidates the confidentiality agreement And basically what happens is were here arguing untold privilege issues when the very documents that were seeking they have voluntarily turned over to a third-party without any issues of privilege Without any issues of confidentiality And thats what happened to them Those documents were turned over and thats why that transcript of that proceeding is in there because were prepared to argue that many of the documents that we have requested for which privilege 267claims have been brought are now waived And Ive also asked to use some of the documents to use confidential documents because I believe it supports our cause of action and I believe that the confidentiality ORANGE REPORTING provisions are now waived So the answer to your THE COURT That makes it as clear as mud I know just understand my frustration Its very complicated when you you know youre telling me all of this and its not really clear to me Let me ask a simple question The privilege here the attorney-client privilege belonged to the clients are they involved in this at all I mean is anybody protecting the rights of these women that were MR ACKERMAN Your Honor Mr Farmer and Mr Edwards have asserted attorney-client privilege on behalf of those clients but many of these privileges that they have asserted are work-product THE COURT Okay MR ACKERMAN Or there is one wi-th confidential source so we have no idea THE COURT Just so Im understanding are there two separate sets of documents one is in the hands of the new law firm and the ones that are in the hands of the trustee and bankruptcy from the old Rothstein firm MR ACKERMAN Yes and no THE COURT Yes and no Okay Good MR ACKERMAN The first set of documents okay which were the subject of the first subpoena and our first ORANGE REPORTING request to produce the trustee turned over those documents responsive to that to the special master and to the new law firm The new law firm has also turned those documents over to Razorback The second set of documents which were here on relate to our subpoena to the trustee for law enforcement Basically communications between law enforcement agencies and the RRA law firm Those documents and those were the basis of a specific request identifying people and those documents have been gathered by the trustee on a disc ready to be produced And they have not been turned over to anyone because the Courts stay order that said any subpoena directed to the trustee is stayed So the trustee has not turned over those documents Those are in the possession of the trustee THE COURT Okay So there are let me there are two sets of documents then The law enforcement documents which are in the possession of the special master of the trustee proceeding right MR ACKERMAN The law enforcement documents are just in the possession of the trustee THE COURT Trustee MR ACKERMAN Not the special master THE COURT Theyre in possession of the trustee The other documents which were the old Rothstein firm ORANGE I_U:PORTING files or materials as well as anything for the new firm are all Farmer-has all of those documents MR ACKERMAN Those were documents that came that the trustee picked up MR SCAROLA Yes MR ACKERMAN Yes THE COURT And they are in the hands of in addition they are in the hands of the special master he has those MR ACKERMAN Right THE COURT Okay MR ACKERMAN Now there is a third set of documents okay They are called Qtask and the Fortress documents okay Those are the softwares that managed the cases.within the Rothstein firm The trustee is still litigating to get those documents with Qtask The Court has THE COURT Who is help me out here Who is MR ACKERMAN Qtask is a company that supplied the 267software system for private communications and also for case management to the Rothstein firm We have received through exhibits and other depositions in the bankruptcy case that Rothstein used some of this secure software communications to communicate with the investors ORANGE REPORTING and people in his firm about his Ponzi scheme as related to the Epstein cases Now those records were subpoenaed and sought by the bankruptcy trustee from a company named Qt ask That company is owned and controlled by former Rothstein lawyers Bob Buschel and others They have been ordered by the bankruptcy court to produce those records and have failed to do so and now are subject to and have been ordered under pain of contempt including incarceration of the individuals to produce those records They have been assessed punitive fines and attorney"s fees for not producing them as of THE COURT we have three sets of documents am I correct now Okay MR ACKERMAN So thats one of the reasons why in terms I understood your question as to the ones were dealing with now but I need to alert the Court there is another group of documents that would be responsive to our initial subpoena but that the bankruptcy trustee would need to produce when Qtask and the Fortress documents become available THE COURT Okay So we have the Rothstein and Farmer documents the file whatever may be in existence We have a law enforcement file that dealt with Rothstein And you have the Qtask I guess software system ORANGE REPORTING MR ACKERMAN And Fortress THE COURT That have not been produced yet but will at some point be in possession of the trustee in bankruptcy MR ACKERMAN Correct THE COURT What were dealing with at least at this point in time in terms of your production request deals with the Rothstein/Farmer documents and the law enforcement documents is that correct MR ACKERMAN Yes THE COURT Okay So where do we start then Thats where I want to where do you want to start with this I mean one of the problems again is that let me stop Start with this Is it possible that since Judge Carney has already spent I imagine countless hours looking at this that he could do it for me as well as the trustee in bankruptcy MR ACKERMAN The problem weve had Your Honor is that we believe that the more ecqnomical method to do this would be for you to take a look at the privilege log and determine initially whether they have been waived and some of the motions here are directed to that And THE COURT Maybe I should stop and ask how many documents are we talking about If were talking fifty thousand to a hundred thousand ORANGE REPORTING MR ACKERMAN No THE COURT there is no way MR ACKERMAN If you look at the special master report THE COURT I did read He said like sixteen hundred documents or MR ACKERMAN Those are sixteen hundred entries They are not necessarily documents THE COURT That means it could be thirty documents per entry or something like that MR ACKERMAN Im sorry sixteen hundred documents MR SCAROLA May I address the Court MR ACKERMAN Twenty-eight thousand pages THE COURT What Im going to do Im going to let him finish take a break for lunch Well come back and you tell me what your position is okay MR SCAROLA I would like to take five minutes before lunch because it may keep us from coming after lunch MR ACKERMAN I dont know if I can finish But the point I want to answer your question is that the breakdown were talking about sixteen hundred documents that are identified on the privilege log Now we believe that if you review the privilege log and make rulings ORANGE REPORTING because of either the inadequacy of the logs because they have failed to comply with the Teague requirements and we believe if you go through and see that some of the matters clearly arent privileged on their face that number will be greatly reduced and then you can do the in camera review It would also give you an opportunity to understand what were trying to 267accomplish and what were trying to plead in this case because then you could review the documents that we have One of the reasons I want to use THE COURT These documents are in some location MR ACKERMAN Yes theyre on discs COURT Okay MR ACKERMAN Theyre on a disc Okay You can have hard copies too if you wish okay Either way it can be done But one of the reasons 267one of my other motions that I wanted to get directed to goes to this matter because we had this confidenti lity agreement where we agreed to keep them secret I submitted those documents to you in camera Those are documents we wanted to start using now in discovery for depositions because part of the issue is we cant THE COURT These MR ACKERMAN Those ones THE COURT Okay ORANGE REPORTING MR ACKERMAN Okay We cant really effectively take discovery MR SCAROLA No objection THE COURT Im sorry MR SCAROLA No objection THE COURT Okay MR SCAROLA I dont mean to interrupt but I can save some time THE COURT Okay Let him have five minutes and well come back and let you say whatever you want Mr Ackerman okay And then come back okay Go ahead sir MR SCAROLA There_ are specific documents that have been identitied by Mr Ackerman from among those documents that 267have been provided to them pursuant to an agreement that they would like to use As long as it is expressly understood that by agreeing to the use of those specific documents we have not prejuqiced any assertion of privilege with regard to any other document we"re prepared to allow them to use them They are worthless I really dont care.whether he uses them or not I just dont want to impact upon any other privilege argument that we may make by making that concession I am obliged to make sure that we continue to protect all of our other privileges because we dont have the right to waive ORANGE REPORTING attorney-client privilege Unlike the Fifth Amendment privilege which is controlled by Mr Epstein as much as we might like to take all of this and put it on the floor in this courtroom for Your Honor and everybody else in the world to take a look at because we have nothing to hide we cant do that THE COURT I understand that MR SCAROLA Okay So were obliged to assert our privilege THE COURT Its not your privilege MR SCAROLA We are obliged to assert the privilege on behalf of our clients Not only on behalf of the clients who we represented whose claims were settled but also because that same information is relevant and material to ongoing claims against Mr Epstein we must protect the work-product privilege as well because of the obligation that we have to protect the interests of those other clients Thats the position that we are in Now before we ever get to questions about privilege and an obligation to prepare a privilege log and an in camera inspection the threshold issue is relevance And it was as a consequence of Your Honors recognition of the fact that there was a threshold relevance issue that Your Honor stayed enforcement of any subpoena or production request in this Court until such time as the pleadings were clarified ORANGE REPORTING _4 so that the relevance issues could be determined We are still in that same position today as a consequence of the ruling that Your Honor has just made We cant go any further this afternoon As much as I would like to to help to resolve these issues because the same threshold problem exists We have a relevancy concern that must be addressed before any privilege concern can be addressed Thats our position sir So I would like to get it done today Weve got today set aside I would love to be able to resolve all of these issues It cannot be done and thats why I suggested that I needed five minutes before lunch Your Honor I dont think I took three MR ACKERMAN I have a response to that but we can do it after lunch It up to you_ THE COURT No go ahead Actually that was my concern initially because I mean from day one in this case Mr Ackerman and I think I articulated this a number of times the problem I had initially with the complaint I know you are not the author of the original complaint okay I know that Was that I couldnt get a handle on what exactly the claims were and what the issues were going to be to determine what was relevant or calculated to lead to admissible evidence in the case I think by filing your amended complaint were getting it down to I think where were going to ultimately end up at some point but we still ORANGE REPORTING havent gotten to that point One of the things that really concerns me is the vagueness of the damage claims here because that has to do with some of the discovery for example that they can get of you So I mean I guess I can make decisions on whether or not privileges have been waived If its been waived its been waived MR SCAROLA Still doesnt resolve the relevance issue Your Honor MR ACKERMAN I need to respond THE COURT I understand that But I can make a determination Im sorry Go ahead MR ACKERMAN I didnt mean to interrupt Ill let you finish THE COURT Please any help I can get MR ACKERMAN Okay There is a two part process with this relevance test And the first part we have argued this back and forth several times with you and with the special master which is why we had some frustration with that proceeding when this subpoena went out with the complaint that it was operating under the first complaint that everyone has been referring to there was absolutely no objection on relevance filed at that time And under the rules of 267procedure that is when its supposed to be done We argued relevance They argued attempted to bring up relevance Really did not bring up relevance in ORANGE REPORTING front of Judge Ray The only motions that were filed in front of Judge Ray related to privilege Once we got the special master we started they started arguing relevance again And one of the hearings in February the special master ruled Im not going back to relevance That shi.p has sailed You could have objected when this subpoena went out the special master ruled And now we re at the point of doing the privilege stuff Thats the first aspect of it The second aspect of it is.that there is enough matters her.e that the Court should rule on to allow some discovery without the need of another complaint Because it allowed the process t_o proceed in some areas The damages you know thats thats not a significant part of this okay Thats not the part were looking for and the subpoena were talking about deals with documents to the trustee and the firm related to the Ponzi scheme THE COURT Let me suggest to you however that the other concern here has to do with my schedule my ability to devote time to reviewing documents and privilege logs for things that may ultimately end up not relevant to the lawsuit Okay _Were talking abo thousands and thousands and thousands of documents Im not a special master getting paid an hour to at documents Ive got eighteen to two thousand other cases out there ORANGE REPORTING You guys want me to sit down and spend two days looking at documents it seems to me that ought-to make a determination as to whether theyre relevant before I do that but you know I understa.nd your position MR ACKERMAN T.he determination of the relevance is on the request Thats what theyre objecting to and they have not theyve waived the request You can look at the subpoena THE COURT I understand that but then I have to look through ten thousand documents to determine whether theyre privileged or not MR ACKERMAN I dont think my point earlier was is that when you make THE COURT I don"t think youre understanding what Im saying What Im saying is it"s important to me because I dont want to spend valuable Court time reviewing documents to determine whether they are privileged or not privileged or whether the privilege has been waived if those documents are not relevant to this lawsuit Thats my point Does that make any sense to you You know you know there is a finite amount of time that I have available to do this and Im going to spend as much time as necessary to get it done But I would like to be able to at least do it in a rational manner rather than just go out and look at documents And because I would have to ORANGE REPORTING look at the documents it seems to me unless its been waived specifically Mr Ackerman or are already then for me to determine whether they are or are not privileged it requires me to.look at them does it not MR ACKERMAN Yes But I dont believe that the issue of relevance is part of it THE COURT You are not following me I guess MR ACKERMAN They have claimed we have sent a subpoena The subpoena has been responded to based on the subpoena Based on specific certain terms relating to the subpoena And the documents you are going to be reviewing are work-product relating to the Epstein case THE COURT Maybe Im not making sense.and I apologize You dont understand what Im asking or what Im suggesting I understand what your position is MR ACKERMAN I understand the overall concept THE COURT I understand your position that these have been waived okay What Im concerned about is the time necessary to review MR ACKERMAN That I understand I understand the time component THE COURT Okay Lets take a short break for lunch Be back here by We talk about Im going to go forward this afternoon do as much as I can on this to get as much done as I can So at least on the ORANGE REPORTING confidential sealed documents which is Tab 4C the ones here in my hand as I understand Mr Scarola agreed that those documents may be utilized by the plaintiff in this lawsuit as long as its clear and I so rule that by doing so is not waiving any privilege associated with any documents whatsoever _on any basis MR SCAROLA Thank you sir MR KNIGHT Thank you Your Honor LUNCH BREAK THE COURT Anybody want to say anything else before we start plowing through some of the motions MR SCAROLA Did you have a nice lunch sir THE COURT Well no The company was good MR ACKERMAN May I take off my coat THE COURT Excuse me MR ACKERMAN Mind if I take off my coat THE COURT Sure MR ACKERMAN Its a little warm THE COURT My deputy has on a heavy jacket She is saying its cold MR WEINBERG Afternoon Your Honor Ive been nominated by Mr Knight and Mr Ackerman to try to respond to the Courts last set of inquiry which is how we as counsel can help facilitate the privilege review and how we can narrow down the magnitude of sixteen hundred ORANGE REPORTING documents which might at least theoretically require document by document review down to a more manageable perspective I think there are two ways MR SCAROLA Excuse me Before we proceed could I know which motion were on I suggest that maybe the best thing to do if we"re going to proceed here is to focus on those matters that are currently pending And I have no objection to taking then in the order in which they appear in the notebook with which the Court has been provided And that would mean the first motion before the Court sour motion for reconsideration regarding our discovery reque THE COURT First thing I kind.of asked counsel to kind of give me some overview of the discovery process and what we"re dealing with here and I assume this is what were still dealing with MR KNIGHT This is in response Your Honor THE COURT Thats what I want to do and then well deal with the motions in order as we have them Okay 267MR.WEINBERG Thank you Your Honor Im not a civil lawyer Ive been asked my by colleagues to help particularly because of some expertise in privileged areas and thats the reason theyve asked me to address this issue There is two ways ORANGE REPORTING One Mr Ackerman at an appropriate time will address with the Court and that is whether there a legally enforceable waiver not of the relevancy issue that was previously addressed but of the privilege issue that would make a particularized document by document privilege analysis unnecessary The second is more difficult Privilege logs are important The case law thats been provided to Your Honor principally the Teague case requires more than Mr Scarola has provided in terms of this privilege log Its particularly important in terms of giving us the ability to narrow down from the sixteen hundred documents to have any potential ability to narrow it down so were asking the Court to review not sixteen hundred but two hundred three hundred four hundred I cant promise you in good faith that a better privilege log will permit us to reduce the number of documents that we believe potentially could be related to the issues that ultimately will be litigated before Your Honor But as it stands now there are privileged entries for instance RRA meaning Rothstein firm lawyers to Mr Edwards Mr Edwards to Rothstein firm lawyers We dont even know which Rothstein firm lawyers they are The log lacks that degree of particularization which the rules and the case law requires ORANGE REPORTING Its particularly important because once Your Honor resolves the legal issue of waivers which I believe can be done on a category basis rather than a document by document basis Your Honor will ultimately be looking at whatever reduced number of documents there are to put them in to three categories Number one these are documents that in fact demonstrate that Mr Edwards gave proper ethical legal representation to his three clients These documents are related to that representation These documents are therefore unwaived and privileged and not subject to an exception under client fraud The second category would be documents that may have Mr Edwards hes either the author or the receiver but.may also involve that subset of lawyers in the Rothstein firm who were not engaged in good faith ethical legal representation of the three clients that Mr Edwards represented Who he represented before he came to Rothstein who he represented afterward There are again twenty lawyers and nine paralegals and many investigators and its hard absent of a more particularized log and 225absent the Courts review of some of the documents For instance some go to Rothstein Some go to RRA May involve an investigator named Jenny that Mr Edwards said he never asked him affirmatively to do anything on behalf ORANGE REPORTING il of his clients So this is that rare firm where there cant be a resumption of ethics a presumption of legality and to simply tell us in a log the communications were with quote RRA lawyers or with quote investigators doesnt help resolve whether theyre in the category of ethical lawyering or criminal fraud which would be an exception to the privilege There is also as a result of one of the documents that Mr Scarola didnt 267object to us using an e-mail THE 267couRT Let me back up I thought the crime fraud section dealt with fraud or crime being committed by the client not the attorney MR WEINBERG Not necessarily Your Honor Crime fraud exception has been _used over and over again for instance by the government when they are investigating lawyers And this really is why I here because before Judge Hoovler I represented a criminal defense lawyer named William Moran He was one of many lawyers charged in the late His law firm was searched Many more documents than Mr Scarola has identified in the log was seized The Court Judge Hoovler 267appointed Lawrence Barcello who was a former Department of Justice prosecutor because crime fraud was key And in that case what was key is whether it was the crime or fraud of the lawyers not of the lawyers clients ORANGE REPORTING In this case and again Im not hurling any this is not the time for me to make allegations THE COURT Well deal with that later I mean I just finished probably a three day trial on crime fraud exception I thought I read every case including some of the similar cases dealing with tobacco manufacturers dealing with the crime fraud And Im having a little trouble with that but Ill deal with.it when we get to that point Because it seems to me MR WEINBERG I will if the Court wants THE COURT Not now MR WEINBERG supplement through other cases But clearly the lawyer cant claim work-product when his work-product is in furtherance of a crime Mr Rothstein is a lawyer He could not protect his documents from litigation or from the g_overnment by saying you cant see my documents they are work-product If the lawyer is creating the crime as Mr Rothstein did theres no privilege to prevent third"".parties or Courts from reviewing the documents THE COURT Well deal with that later Thats not my understanding but I didnt think it was quite as broad as you just stated but MR WEINBERG Let me supplement that piece of this argument ORANGE REPORTING THE COURT What youre telling me,.though is that you feel that the amount of documents that I may be able to or have to review once I get past the issue of whether or not there has been a waiver on the relevance issue is that there may be waivers in regard to the attorney-client privilege to begin with And that second we need a more particularized privilege log because from the log itself we cant tell whether some of these documents may or may not have other exceptions applicable to them MR WEINBERG Exactly Your Honor And I cant say I cannot make a representation that a better log will reduce it to the number that the Court would feel comfortable reviewing If the Court is not comfortable with what results from a more particularized log and after hearing Mr Ackerman on the waiver issue THE CO.URT Im not sure comfort is the issue MR WEINBERG Economy THE COURT I hate to tell you but in camera reviews are probably the least favorite thing I do but you have to do them You have to do them Okay Anything else you want to tell me MR WEINBERG Just lastly Judg we now as one of the documents Mr Ackerman found in attorneys eyes only we.have an e-mail from Cara Holmes ORANGE REPORTING THE COURT Youre talking about these documents MR WEINBERG One of the lawyers at the Rothstein firm She was a former FBI agent and she says on July I think our best bet is t6 go after those close to Epstein And those would be the kind of gray documents that Your Honor would have to make a document by document analysis to determine does this document support good faith litigation Is it in relation to a proper representa.tion of Mr Edwards client or instead is some investigator going off on an intrusive violative conduct that only is to further Mr Rothsteins ambitions to try to inflate the Epstein cases to advance his own investor scheme I dont have an answer because I dont have the documents Im not making accusations about where any one document will fit Im hopeful through a log that is more particularized we can come back and say Judge we would like you to look at the following three or four hundred I cant represent we can If we cant we would of course would then go and recommend to the Court what Judge Hoovler did in this massive law firm search which is to consider the Court looking at some of the documents either on review or de novo and having a special master and perhaps a special master with experience in crime fraud such as a former Attorn I know Mr Goldberger can identify a few from the community who would have ongoing xperience ORANGE REPORTING from their prior jobs as an assistant U.S Attorney with how documents fit into these three categories Thank you sir THE COURT You know I certainly have no objection to appointing a special master however Im not a federal court I dont have the authority to do that absent the consent of the parties as I understand it Although some of my colleagues try to get around that rule by appointing a mediator I think its still whatever you call it put a sign on a cow and call it a pig its still a cow You want to say anything else in response to that before we get into the nitty-gritty of the specific motions here MR SCAROLA Very narrowly Your Honor I disagree with the assertion thats been made that an attorneys involvement in a crime or fraud in which the client is not participating can constitute a waiver of the clients privilege The crime fraud exception is an exception that waives the clients privilege when the client is using an attorney to advance the clients crime or fraud I think that counsel is incorrect about the assertion that hes made regarding the crime fraud exception But taJ..king about these things in the abstract is not going to advance this ORANGE REPORTING THE COURT Okay Lets go forward with so what motion would be first up then MR SCAROLA It is our motion for reconsideration of Your Honors order sustaining objections to requests for admissions and interrogatories propounded to Mr Epstein MR ACKERMAN Your Honor before he proceeds I think that the actual discovery requests were left out of the notebook for this THE COURT Yeah Ive looked at the MR ACKERMAN So I have the one for the request to produce is in there I have the interrogatories and THE COURT I think Ive got the request MR ACKERMAN Request to produce is there but I dont think request for admissions THE COURT The response MR ACKERMAN The response is there But the actual reque and the interrogatories are not THE COURT Okay MR ACKERMAN So you can put these in your book at Three a I apologize for not.having it THE COURT Okay MR SCAROLA Your Honor this motion for reconsideration cites to the now less than recent Fourth ORANGE REPORTING DCA opfnion in Alvarez ve.rsus Cooper Tire where the Court finds it to have been error for the trial Court to have restricted discovery which I suggest to Your Honor is even less clearly related to he allegations that are pending then.the allegations in this case and their relationship to our request for admissions and interrogatories If we can take a look qui kly at THE COURT Let me ask you a question about that Thats Judge Fines tire case right MR SCAROLA Yes THE COURT As I understand is that still on rehearing MR ACKERMAN Yes and I have a docket sheet for you to look at THE COURT Im concerned that case is gone a little too.far in the discovery and I well I dont know whats going to happen MR SCAROLA Let me suggest to Your Honor that regardless of whether the broader parameters that are described in that case are or are not applicable I think that Your Honor simply misapprehended what the appropriate scope of discovery in 225this case is THE COURT Okay MR SCAROLA And I call your attention Were looking at ORANGE.REPORTING THE COURT Let me read the ones again that were talking about because I didnt have them right here in front of me the requests themselves MR SCAROLA My suggestion is that you start with the counterclaim itself because youll understand their relevance more if you understand the counterclaim first THE COURT I read that this morning but let me go back and read this again MR 267scAROLA I would just call your attention particularly to the allegations in Paragraph Five and Nine If you look at those first and then we go to the discovery I think its hard to draw the conclusion that this is not reasonably calculated to lead to discovery of admissible evidence THE COURT Go ahead Im listening MR SCAROLA All right sir Basically what this complaint says is that Mr Epstein has engaged in an extensive course of conduct that subjected him to civil liability both with regard to then pending cases and potential additional cases as well And what he tried to do and continues to try to do in suing Mr Edwards is not to assert a legitimate claim but to make an example of Mr Edwards to deter Mr Edwards and others from suing him for the legitimate claims that exist that are out there ORANGE REPORTING ready to be filed So thats the contention in the broadest terms So request for admission number one you have acted on sexual preference for minor females on multiple occasions over the course of at least the last decade Defining the scope of Mr Epsteins motive to conceal his misconduct both in terms of restricting his civil liability and his punitive damage exposure I suggest to Your Honor is at least reasonably calculated to lead to admissible evidence Two you have engaged in sexual activity with more than forty minor girls between and in your residence in West Palm Beach Florida Which is where Mr Edwards clients were assaulted Three among the minor females with whom you have engaged in sexual activity between and was a person identified in a civil lawsuit filed against you as and those are the identifications of Mr Edwards three clients So 267clearly an acknowledgment from Mr Epstein that he in fact engaged in sexual activity with these minor clients is relevant and material to what we contend is the motive Now if Your Honor may recall we understand that there is very likely to be a Fifth Amendment privilege ORANGE REPORTING asserted with regard to each of these requests for admissions But thats not the determination that Your Honor is making right now Youre not determining whether Mr Epstein can or cannot reasonably assert a Fifth Amendment privilege Youre determining whether this discovery is reasonably calculated to lead to admissible evidence to the claim the counterclaim that we have brought against him Im quite frankly very puzzled as to how you could arrive at the conclusion that it is not when its these cases we are alleging that he was attempting through this spurious lawsuit to avoid liability on All of these cases remained pending at the time that he sued Mr Edwards The next question again relates to these same allegations with regard to these three clients of Mr Edwards Number five talks about his having reason to believe that they were minors at the time Number six goes directly to the evidence in the underlying claims And each of these are clearly calculated to lead to the discovery of admissible evidence regardless of what standard may be applied What reasonable standard may be applied in terms of the scope of appropriate discovery Now if Mr Epstein asserts a Fifth Amendment ORANGE REPORTING privilege with regard to these requests were entitled in a civil case to draw inferences from that so were entitled to know whether hes going to assert his Fifth Amendment privilege or not 267And they also continue to have bearing as long as some affirmative relief is being asserted against Mr Edwards but because that pleading remains undefined I need to focus exclusively right now on our pending counterclaim Each of these and I dont know that I need to go through them because the argument is the same with regard to each of the request for admissions They are all along the same lines I suggest that Your Honor simply made a mistake when you denied that discovery The interrogatories are in some 267respects even more puzzling The first question is what is the full name and Florida address of the person answering these interrogatories THE COURT Hang on Let me get to that MR SCAROLA Im sorry THE COURT Where is my order on 267that MR ACKERMAN Your Honor just to make things a little bit easier You sustained the objection to interrogatory number one And I dont have an explanation but thats not an objection to be raised THE COURT Which interrogatory are we talking ORANGE REPORTING about because there is an interrogatory at the end-of these MR ACKERMAN The ones that were talking about are two three four five six nine seven THE COURT Hang on hang on Where is the order Im trying to find the order on that MR ACKERMAN Its in there Three THE COURT Okay Im sorry MR SCAROLA No i-ts-not its not tab Three Its THE COURT Ive got the order MR SCAROLA Okay MR ACKERMAN Im sorry Three A THE COURT Yeah I see where I did one two three four five six nine privilege MR SCAROLA You deferred as to eight THE COURT And seven on attorney-client MR SCAROLA And seven on attorney-client privilege So Im not sure what Your Honor was looking at but I dont see how you can sustain the objection to number one under any circumstances THE COURT Actually nor do I MR SCAR.OLA And number two number two is going to the same issues as the request for admissions As is ORANGE REPORTING number three As is number four Ghislaine Maxwell is a woman who is alleged to have been a procurer for Mr Epstein who engaged in sexual conduct with the same minor girls that Mr Epstein was abusing She was a participant in his illegal conduct Number five had to do with the damages that were being claimed And again I can understand how we couldnt address that one until we know what the damages are that are being claimed now Number six has to do with engaging in sexual activities with minors again Number seven Your Honor has sustained on the basis of attorney-client privilege and I think that Your Honor was confused Because _William Scherer and the Conrad Scherer Law Firm were 267not lawyers who ever represented Epstein Mr Scherer and the Conrad Scherer Law Firm are attorneys who repr sented and continue to represent Ponzi scheme victims They have interests adverse to the interests of Mr Epstein And it is our understanding that information was provided by Mr Epstein to the Conrad Scherer Firm and to William Scherer We would like to know what information they gave them that relates to these cases and I dont know how that that falls withi an attorney-client privilege You deferred as to number eight and Im not sure why ORANGE REPORTING th was deferred but I think that certainly is information to which were currently entitled As is number nine So I would ask the Court to take a look at these again I think somehow there was some confusion on the Courts part Perhaps Your Honor was focusing on the complaint and not discovery relevant and material to the counterclaim If you focus on the allegations in the counterclaim I think its very apparent that this is information we"re entitled to have Thank you sir THE COURT Thank you Yes sir MR ACKERMAN Okay Your Honor I would like to start off by saying that we had a lengt argument about all of these issues with the exception of number one which I dont honestly have an explanation for But we went through a lengthy argument about all of these issues and one of the concerns that came up at that time was that the Court was asking us whether or not based on the complaint that these matters were going to be at issue We filed an amended pleading where we took these issues to the extent that they were remotely relevant in the first complaint out E?en if you look at the amended complaint there is nothing there that puts these matters that he has asked with this type of particularity in issue ORANGE REPORTING MR SCAROLA Excuse me Your Honor I conceded that Were not talking about discovery relating to the complaint THE COURT Im sure hes going somewhere with this I suspect so Im going to let him go MR SCAROLA Okay MR ACKERMAN All right Mr Scarola argued at that time his counterclaim issues okay And the Court entered its ruling and the motion for reconsideration came before this Court solely on the basis qf Alvarez okay Thats the only reason the Court granted this rehearing And my first argument is is that if the Court is not,going to consider Alvarez as the grounds this is done THE COURT Well any ruling let me just say up front any ruling on the discovery matters interlocutory orders I can reconsider any time for any reason The issue that I want to find the time to go to today is whether or not these are in fact calculated to lead to admissible evidence in this case So deal with that issue because I quite frankly its been awhile since you argued that issue and I made my ruling MR ACKERMAN We objected first of all that the scopes are burden the scopes are extremely large Mr Scarolas counterclaim which hes relying on is an abuse of process claim His abuse of process claim is ORANGE REPORTING directed at Mr Epstein for this lawsuit He therefore has not done so in his counterclaim needs to particularly allege what process what acts of the judicial system were abused in this case as he has argued to this Court And that needs to be done before we undertake this broad extensive discovery Now we have objected on the grounds of the Fifth Amendment And we have argued before on the sword and shield and I need to say something about it at this point The issues that involve and the Court overruled them when it came to the motion for summary judgment The sword and shield issues come on these lines When a plaintiff makes a claim and then claims privilege on matters related to the case then Mr Scarola may have a point But nothing in this case and he has not particularly alleged why this case and the actions in this case that have been taken by Mr Epstein"s counsel as abuse of process raised these issues Mr Scarola has and therefore the sword and this was briefed in the response our response to the motion for summary judgment It was extensively briefed on the sword and shield doctrine and so Im just going to direct the Court to that But in this case we have he has asked about sexual preferences sexual activities The scope of this is extremely broad Its extremely harassing And given the ORANGE REPORTING limitations of what he has to prove in his counterclaim for abuse of process nothing here remotely leads to any discoverable evidence and thats why the Court denied it to begin with Engaged in sexual activity So were going to have to invade all of these collateral matters These will take the Court one of the arguments I made last time on a side trip that will take forever Were not here _this case is not here to litigate those matters Our case and Mr Scarolas response are related to what the law firm did with investors relating to the Epstein cases and how the judicial system was perverted for a Ponzi scheme Mr Scarolas response is well 267were going to bring an abuse of process claim and frankly I know were not I here necessarily to re-argue it and the Court ruled in a prior order that it was an abuse of process claim But if you look at it there is elements of defamation There is other elements of other cases So I think before you reach any issue with regard to whether these matters he is going to have to be required to replead his counterclaim with the same particularity that youre requiring us to see how sexual activity with all of these minor girls are 267going to relate to an abuse of process claim Okay Secondly number three he wants to know who he had specific sexual ac ivity with Thats not going to bear on an abuse of process claim Okay He can make generally ORANGE REPORTING the allegation that maybe Mr Epstein filed this lawsuit to harass Brad Edwards but this is not where it"s going to go Okay We dont have to get into the number of minor females that he paid for We don"t have to get into all of these specific dates We dont have to get into the names of this And this relates to the motion that we have later on relating to pre-trial publicity Because this stuff gets filed in this Court and the next thing we know its in the newspapers or the Internet And the Court if this discovery proceeds is going to be in.a position of having to deal with those issues that may potentially taint the jury pool So at this point they really have no relevance okay Hes asked for socializing minor females in the presence of these people There is no charge there is no allegation that supports this And an abuse of process claim that he has pled as it presently xists including transporting these and acts of trafficking minors are going to take us on a side trip Now with regards to thats pretty much related to the requests for admissions Most of the interrogatories fall under the same category we did raise Fifth Amendment objections there They are not related to pursuing whether his genitals were exposed Whether they were clothed in underwear have nothing to do with the claim that were proceeding with ORANGE REPORTING They cannot possibly lead to relevant evidence relating to this All it will do is be burdensome harassing and wasting the Courts time dealing with this The same thing with number three whether your genitals were exposed What was the number of times this lady Maxwell engaged in activity with minor females What does that have to do with an abuse of process claim This is merely done for the purpqse of harassment and has nothing to do with the claims that are being brought which is why I believe the Court ruled in this matter Here he wants to know number six in the interrogatories with regard to the last time you engaged in sexual activity with amino state the following We dont need to get into that T_his Court doesnt need to spend its time on that There is nothing remotely related to this 267abuse of process claim thats going to make that relevant The same thing with L.M in number eight THE COURT Let me just ask you his argument is essentially that the purpose of the abuse of process here is to cover up 267these alleged conduct Or to prevent exposure of this alleged conduct by Mr Edwards and others like him How do you respond to that If it goes to the motive of filing or abusing the process how is that not if thats true how is that not MR ACKERMAN Well first of all Your Honor ORANGE REPORTING Mr Epstein pled guilty okay There was an overall settlement that dealt with a numerous number of victims as part of that okay He served time He was on probation okay He entered into a non-prosecution agreement and whether they are happy with what the government did or not is really irrelevant So how do you get to the point where he wants to cover up all of this when the government has concluded the investigation Theyve agreed THE COURT I guess its the same reason your client pled the Fifth Amendment I presume your concern or not maybe concern that doesnt protect him I mean I mean thats a logical answer I dont know what happened here Im just Im asking you to res,pond to his argument which is look if the abuse of process here is misuse of the judicial system to silence Mr Edwards and others like him from pursuing claims against your client for sexual activities with minor females or other sexual misconduct if thats his motive for doing it how is it not relevant that hes engaged in that conduct MR ACKERMAN Because the abuse of process claim does not require the 267proof of motive Okay The abuse if you file THE COURT Its not whether it requires proof of it Whether its relevant to the cause of action MR ACKERMAN Well if one of the elements isnt ORANGE REPORTING one if the element of the abuse of process is that they took a pending case and abused the system to put some extortion on someone else they got to establish that To extort or put pressure on Mr Edwards he has to establish that first before we go into all of these other matters B_ecause if the process was legitimately used it doesnt matter what the motive is THE COURT Well I thought that abuse of process the whole theory of abuse of process was being used for purpose unrelated to the process itself i.e to cover up misdeeds or whatever the reason may be At least the allegation That_ is the reason or at least thats their argument MR ACKERMAN Your Honor THE COURT Im just asking Im not ruling Im asking questions here So just you know he says the reason that its relevant is because the process is being abused for the purpose The reason its being abused is to the ulterior motive is to cover up and otherwise prevent the exposure of your client to these other a_llegations bY Mr Edwards or others like him that may be scared off or afraid to pursue it because of what hes doing right now At least thats his argument MR ACKERMAN Your Honor based on what hes asking ORANGE REPORTING THE COURT Uh-huh MR ACKERMAN you dont need to ask him this way THE COURT Uh-huh MR ACKERMAN We dont need to go through and for example get healthcare provider records for sexual disorder There is no issue there We dont need to go through in other words what is the name and last known address of every healthcare provider which you have been treated or evaluated for sexual disorder We havent placed that in issue Okay We dont need and he doesnt need to be able if the Court is correct and to follow the Courts question we dont need to know the date of every single one of the actions We dont need to show in detail what hes asking about genitals We dont 267need to know the number of sexual matters that were involved with Mr Epstein to do that He can introduce that by talking about what you know what hes pled guilty to But this is such a broad request we have asserted a Fifth Amendment privilege on it and he is making this argument in defense I mean we were making that in defense of a counterclaim THE COURT Im sorry Im not ruling on the Fifth Amendment privilege Im ruling on whether or not these are relevant to the lawsuit and not whether your client has the Fifth Amendment privilege ORANGE REPORTING MR ACKERMAN Thats part of our objections right now MR SCAROLA Which I am not asking be overruleq THE COURT I didnt understand it to be that way I understood it to be the question that was in front of me Your client can always say object on the basis but he has to specifically answer the question that way But the question was that I thought we were discussing was whether or not he can be required to even give that answer because if its not relevant or calculated to lead to admissible evidence he doesnt have to give any answer period MR ACKERMAN Your Honor I just want to put on the record that weve raised the Fifth Amendment THE COURT Okay MR ACKERMAN Secondly thi,s is not calculated to lead to any relevant evidence It is calculated to get harassing information that is over broad and has nothing to do with given this type of detail with what he claims he wants to prove okay The Court can certainly restrict what hes asking Thats one of our objections Its over broad Its harassing Its very very personal in terms of doing it okay It certainly should be limited in time There is no effort here at all to limit the time If the Court he doesnt need to answer questions about his ORANGE REPORTING genitals when they were exposed okay If the interrogatory is rephrased so that it states that were you subject to a number of victims claims ifs how many he can establish that okay But to go through and ask w.hen Maxwell engaged in sexual activity with a minor female what does that have to do with Mr Epstein Okay Thats someone else Okay And_ whether he did these overt sexual acts that are the subject of this request that"s really the heart of the objection I think still contend its not relevant based on what is there but certainly if the Court is _going to find that he wants to prove motive this isnt the way to do it Were going to have evidentiary issues with it The Court has discretion in discovery matters to limit it so as not to waste the Courts time with unnecessary litigation And at a minimum I still believe the Court needs to wait until Cooper is involved but at a minimum the Court should sustain these objections and make him reask them so that they are not theyre limited in time Theyre limited in not so much detail And that they are calculated to show why its related to the claims in this lawsuit and these dont meet that requirement THE COURT Okay Briefly Mr Scarola MR SCAROLA Your Honor is correct that motive while generally not an element of a tort is always ORANGE REPORTING relevant and material And while motive is generally not an element of a tort in an abuse of process claim where we are obliged to show that the purpose behind the ilin of the complaint against Mr Edwards which is the process that is clearly addressed in this counterclaim the purpose was unrelated to any legitimate purpose and was intended to cover up an extremely broad pattern conduct that could subject Mr Epstein to both additional criminal liability and civil liability rt is a very curious argument indeed that Mr Epstein has engaged in so much of this criminal and tortious conduct that it would create an enormous burden for him to answer the interrogatories about how many young women he has abused If thats the argument that is being made and it sounds like thats the argument thats being made they have the burden of supporting that burdensomeness argument But there is no way that the Court could ever 267conclude 267that you have engaged in so much misconduct.that Im not going to ask you to tell us how much because it would be too much of a bur.den on you THE COURT I didnt understand.you to say that I thought 267you were saying it was over broad not burdensome It a different standard MR SCAROLA Well the word burdensome was spoken many times and it was related to the scope of what ORANGE REPORTING was being requested and how many incidents would need to be disclosed As far as the scope is concerned where this conduct took place when it took place the exten to which it is going to expose Mr Epstein to potential criminal and civil liability is all relevant and material Theres nothing overly burdensome about this at all MR ACKERMAN The burdensome part of it was the detour that this Court would go on if we go down that path THE COURT Okay Ive heard enough argument oh that Im not going to rule right off the top of my head here Youll get an order by the end of the week I got to think about this Whichever way I go its kind of like in a sense a roadmap of where were going in the future so I really have to think about that more What would be the next one here we have to deal with guys I mean I got a pretty good idea what Im going to do but I want to think about it overnight before I put it on paper MR SCAROLA Your Honor the next has to do with our motion for protective order and objections to a notice of taking deposition and appointment of special master in an effort to re-depose Mr Edwards MR ACKERMAN No thats not the one THE COURT Im sorry MR ACKERMAN I dont believe thats the next ORANGE REPORTING one MR SCAROLA Three MR ACKERMAN The next one is Three and Three Motion for protective order relating to a subpoena that we sent to the trustee seeking the law enforcement documents MR SCAROLA Oh Im sorry THE COURT So Three MR ACKERMAN Three THE COURT Lets me pull that Lets take about a five minute recess Ive got something I need to take care of real quick BREAK TAKEN MR SCAROLA Your Honor an issue has arisen during the recess that the court reporter would like some guidance on One of the reporters has reque 267sted the transcription of this hearing and to receive a copy and the court reporter wants the Courts guidance as to whether she can accept an order from someone other than a party in the case MR ACKERMAN Your Honor I would ask that you defer that until we get to the motion relating to prejudicial statements that were.asking the Court to enter some restrictions on because of the use that has been made of 267statements in this case that show up in the press that ORANGE REPORTING relate to the sexual matters which we believe arent relevant THE COURT You are asking me to issue a prior restraint order is that what you"re asking me to do do MR ACKERMAN Its not a prior restraint order THE COURT Well what is it you are asking me to MR ACKERMAN Were asking you to enter an order hold on a second MR KNIGHT Actually at this point I think what Joe is saying the court reporter issue if we could take that up at the very end because it may relate to some of these other issues THE COURT Lets make sure we get to it Okay Because well lets deal with it right now Since its come up lets deal with it and well deal with it again I guess in the order But this is separate This is an open proceeding I know of no case law that prevents anybody from getting a copy of having a court reporter type a deposition MR SCAROLA Thats my understanding sir THE COURT I dont know of any I mean cant somebody come and get a copy of anything thats in open court I dont know if they"re willing to pay for it Do you have any authority for that at all ORANGE REPORTING MR ACKERMAN 267well no beC9,USe I wasnt prepared to deal with it today My concern though is that we have filed and this would be if you want to take this up now THE COURT Well I guess we better then we can go ahead and take it up in order MR ACKERMAN Well this-would be sections Three and Three THE COURT Okay This has actually never been presented to me for hearing before right MR SCAROLA This is 267new MR ACKERMAN This is new THE COURT Okay Give me a second counsel Okay Mr Scarola you filed a response to this MR SCAROLA Yes sir thats the next tab THE COURT Okay Ill hear argument I have to tell you gentlemen its been awhile since Ive had-this issue c9me up In fact I think its only come up.once in my judicial career but I will listen to argument I will not rule from the bench today I have to look at these cases again Its been a long time since I read that Supreme Court _decision but go ahead Mr Ackerman MR ACKERMAN Yes sir THE COURT Okay And did anybody favor me with copies of these cases ORANGE REPORTING MR SCAROLA I did not sir MR ACKERMAN I did not Your Honor We can send them in THE COURT I can look them up MR ACKERMAN One of the things thats been occurring in this case Your Honor and a perfect example of our position on it is the summary judgment documents Everything that Mr Scarola and Mr Edwards can do to raise the issues of these sexual improprieties to insert in this case the Court can see that they are doing Okay Once they file the stuff in the Court file it is then under the law and under the bar rules able to be commented on So as a result weve attached to the first motion and then the amended motion these articles where Mr Scarola is being attributed to saying that hes a convicted pedophile Thats not true Okay One of the things I want to address in this.motion is up until today Mr Scarola has constantly referred to Mr Epstein as a pedophile Okay And there has been no proof of that anywhere And its inappropriate to do it in a Court proceeding and for it to be quoted in this manner because it will taint the jury pool And also has no bearing on what the issues are _Mr Scarola is quoted in other areas about speaking to Prince Andrew There is an address book All of_these will become issues in this case if this door gets opened ORANGE REPORTING There is articles where Mr Scarola says theyre trying to get a statement from Prince Andrew And its our view that these were published comments by Mr Scarola thats clearly trying to generate articles about Mr Epstein and that is not the place to try this case The Court does have discretion under the Miami Herald Publishing McIntosh case to take control and prohibit extraditial commentary in order to ensure the party receives a fair trial And you 267can take steps to protect against pre-trial_ publicity as the Shepherd Maxwell case discusse The limitations imposed by the Court on communications between the lawyers and/or litigants and the media are permissible for good cause in order to assure a fair trial McIntosh case specifically states that limitations placed on lawyers litigants and officials directly affected by Court proceedings may be at the Courts discretion Muzzling lawyers who may wish to make pub ic statements has been long 267recog ized its within the Courts inherent power to control professional conduct There is also a bar canon of the rules regulating the Florida Bar called trial publicity It talks about a lawyer shall not make an traditial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should kno that it will have a ORANGE REPORTING prejudicial likelihood on material prejudicing an adjudicated proceeding due to its creation of an eminent and substantial detriment on that proceeding This rule incorporates the substantial likelihood of material prejudice standard that the Supreme Court adopted And whats occurred and the Court can look at the docket sheet I dont think I have it attached here But there was a recent filing that Mr Scarola made that he used in support of his punitive damages about an interview with another alleged victim He files it in the Court file and then there is an article about it That has also been the case with some of these other articles We have in the amended motion the article is Epstein Claim To Intimidate Attorney Edwards Pr 267osecuting Sex Abuse Cases Hes being quoted here Okay Then there is another article in.the Daily News ffrey Epstein Introduced woman to Prince Andrew Thats being quoted Mr Edwards is quoted Then there is a marketing firm that Edwards Mr Edwards law firm used where he states Mr Edwards has successfully represented ten women between twelve and.fifteen years old by proving that Mr Epstein and his intentional sex trafficking criminal enterprise exploited these girls There is simply no basis in fact for this at least based on the knowledge we have of the number of cases Mr Edwards has handled ORANGE REPORTING We have a British publicati9n called the Telegraph thats published convicted pedophile Well he hasnt been convicted as a pedophile Okay Much of 267the information is from Mr Scarola and hes quoted in the article that weve attached and we put forth some of what he said He wants to speak to Prince Andrew They want to obtain additional details We believe Prince Andrew has been in the company of Mr Epstein And then we talk about The Holy Grail that was reprinted Then there is another British publication called the Observer which Mr Scarola is again quoted We have another art.icle published in the Independant discussing the same thing And weve got the Farmer.Firm on their web site issuing press releases and online articles referring to Mr Epstein and the lawsuits And they refer to him on the web site as the billionaire pedophile and he helped ten women seek justice Okay We dont believe its appropriate to wage a media campaign taint the jury pool and pre-try this case in the court of world opinion particularly given the Internet Okay This is one of the reasons why I believe the Court should deny the earlier request that we spoke about with regard to the discovery on these specific sexual matters ORANGE REPORTING because they will then be in the press And that will be then we will be faced with real issues about a fair trial The Court can place these limitations THE COURT Help me out here The McIntosh case I read this and there has been some Supreme Court 267cases since that decision as I understand that tell me what the threshold or what the standard is that I have to apply before I do that I know I have the authority to do that I certainly have the discretion to do that but there a standard set forth in these cases as I recall it that tells me what you you or the person actually seeking this restraint is required to establish before before I go down there So what is it what do the cases tell me on that MR ACKERMAN The Court we have proposed what the Court can do It says that no person covered by this order THE COURT No no You misunderstand me Let me ask the question again Im not 267asking you what you want me to do in terms of restraint What Im asking you is what is the threshold of the bar you have to reach in order to get such a restraint As I understood it if I recall right the McIntosh case sets forth a standard that I have to utilize before I I use my discretion by entering such an order Its been aw:hile ORANGE REPORTING MR SCAROLA That standard is described in our memo Your Honor Its quoted at page three the top of page three in our memo THE COURT And your memo is at MR SCAROLA Thats tab Comes right after their memo MR ACKERMAN Hold on To justify a prior restraint the activity must pose a clear and present danger or serious or eminent threat to a protecting competing interest and that such a restraint cannot be upheld or cannot be upheld if reasonable alternatives are available and thats what McIntosh says MR SCAROLA Thats a direct quote from McIntosh Your Honor thats correct MR ACKERMAN But the Court also and that talks about pre-trial proceedings Okay This can go on between now and the time we go to Court as long as we are discussing these issues And by the time we get to trial you know and the issue I think the Court is concerned about is eminency But we have a history right now thats been established If the Court allows this discovery to proceed that weve previously argued and does not place and the case law says that a 267court prohibition on comment i an acceptable alternative to prior restraint which is cited in the Florida Freedom Newspapers versus ORANGE REPORTING Mccrary case which is a Florida Im sorry Yeah Florida Supreme Court case So.2nd And it can outline the Court has also outlined other measures short of prior restraint on publication Okay And that has been held to be an appropriate way of doing it And what the Court can do and what were 267proposing to do is enter some pre-trial order that before any comments are made or anything is filed relating of a sexual nature the Court review it and impose limitations on counsel before they comment to the press These matters are on the Internet and there is really no way to deal with it THE COURT The order I enter isnt going to protect _the Internet anyway MR ACKERMAN:_You cant stop the Interriet What you can do is stop us stop the lawyers from talking to reporters about stuff before it gets filed in the Court file For example Mr Scarola recently filed an interview of a woman that was an alleged victim of Mr Epsteins actions He filed that with a pleading that said this is being filed in support of some motion followed by an article in paper Okay Thats what were asking the Court to exercise some control over The 267ase l_aw as I understand it stat that 6nce its in the public record the lawyers are allowed to comment on it But what were trying to do is prevent that so that we dont have an ORANGE REPORTING unnecessary amount of pre-trial publicity on issues that may not and the Court may ultimately le on have nothing to do with this case Okay You are not there yet on that decision okay on what the ultimate issues are And until that occurs the lawyers shouldnt be making any comments to the press about sexual conduct claims involving Mr Epstein with the specificity.Mr Scarola has been saying What were proposing is that is contained on page eight and nine of the amended motion That basically states that no person covered by this order shall make no statement to the media that could interfere with a fair trial Notwithstanding that the Court THE COURT What page 267are you on MR ACKERMAN Im on page eight and nine of our amended motion THE COURT Does this come out of a case MR ACKERMAN Yes THE COURT What case Because I wouldnt know what in the world that could interfere with a fair trial or otherwise prejudice the parties in administration of justice means Thats kind of vague You have a case that that came out of MR ACKERMAN Yeah I do Your Honor I have to locate it I believe I have it Your Honor I dont have ORANGE REPORTING a copy of it Ill have to get it to you I thought I had it with me THE COURT Okay Go ahead MR ACKERMAN But these cases do allow the Court to make a balancing test between free expression and a fair trial And in this case I dont were asking for some protection because if we end up for example doing a video deposition THE COURT There is a distinction between asking for protection against publicity or statements being made and asking for protection in regard to the integrity of a fair trial Those are two different things You understand what I saying The mere fact that Omebody says something that your client finds offensive ordoesnt like or feels that hes been invaded by that comment is not the same thing as my concern which is which is that there is a fair trial in 267this case and can your client get a fair trial with pre-trial publicity You see what Im getting at Because you 267seem to be focusing most on you know this thing affects your client are you know libel or slander Honor MR ACKERMAN No no thats not the issue Your 267THE COURT Okay MR ACKERMAN Here"s the thing ORANGE REPORTING THE COURT Be.cause I dont have 267any evidence in front me at this point that whatever pre-trial publicity has gone on or been said or whatever has been said or done and I dont know what all has.been done has.in any way affected our ability to sit six jurors in this particular case that dont know anything about this case and otherwise are able to render a fair verdict MR ACKERMAN Heres what I ask the Court to consider THE COURT Okay MR ACKERMAN Okay Lets hypothetically and we dont believe the Court should allow this to occur but hypothetically lets assume that the Court allows a substantial portion of the discovery that Mr Scarola was arguing about before lets assume that that gets in the Court file Lets assume that Mr Scarola or Mr Edwards is allowed to make continual media releases about it between now and the time we have a hearing Lets assume that in response to some of these discovery requests we will be filing motions under which relates to other bad acts to keep that information out because its merely being introduced to prejudice the jury The Court will have to conduct a balancing test in terms of whether its proposed relevancy is outweighed by the prejudicial impact Based on the information that they are seeking ORANGE REPORTING that will be an enormous task Based on what is likely to occur if this occurs there will be numerous media publications continuously now through the case gets tried Okay If its tried And at that point in time we will then be faced with a potential jury pool that will have had a steady dose of this and I believe that that is wrong to do at this point particularly when the Court has not solidified the issues about how extensive this will be And at that point I think the Court it.is well within the Courts the Nebraska Press Association case states that while restrictive orders unquestionably are permissible within certain limits the U.S Supreme Court has not made any distinctions between restrictive orders and prior restraints Instead Nebraska focuses on balancing 267free expression against competing interest in a particular context In this case what Im trying to say is that if my hypothetical proves to be true then we will be faced with a jury that will be tainted because of all of the publications And we will if this case is limited to abuse of process and Mr Scarola can inject this into it then the jury in my opinion and I will argue to the Court will not be able to set aside any instructions the Court makes relating to evidence We have Fifth Amendment issues that are coming up And I submit that ORANGE REPORTING before any further media reports occur that the Court at least instruct the lawyers that there be no.more media discussions about the sexual activities un il youve ruled on whether theyre relevant And then place some control on what the lawyers say sd that by the time we do get to trial the media the jury pool is not tainted which clearly will occur based on the pattern weve seen right now THE COURT Yes sir MR SCAROLA We have filed an extensive memorandum addressing these issues It would be unconstitutional for Your Honor to impose any type of gag order on us at this point in time Particularly considering the fact that this matter has not even yet been set for trial THE COURT Not even at issue MR SCAROLA Not even at issue We dont even have a complaint filed yet So the case law is clear that there must be a clear and presen;t danger that a jury pool could be tainted by specific THE COURT Does that standard apply to gag orders as to the attorneys as compared to power of restraint of the press or something of that nature MR SCAROLA It applies to gag orders with regard to attorneys ORANGE REPORTING THE COURT Okay MR SCAROLA Yes it does apply to gag orders with regard to attorneys And the standards that are applicable I suggest to Your Honor clearly cannot be met under the present circumstances And there is a complete and total absence of proof before Your Honor that we have engaged in any conduct whatsoever that could be prohibited under any circumstances We have had the opportunity to appear on national television We have had the opportunity to conduct extensive press interviews We have had the opportunity to issue press releases We have not engaged in any of that conduct The press has taken a keen interest particularly the foreign press has taken a keen interest in this case and there have been a lot of articles that have appeared in the British press ever since a victim of Mr Epsteins has made public statements that have associated British royalty with Mr Epstein They have been very interested in what is going on in this case as a 267consequence of that And we have had many opportunities to speak to the foreign press about these issues We have scrupulously limited any response that we have made to contacts initiated by the press to matters that are matters of public record-and available to the press by going to the courthouse and reading this Courts ORANGE REPORTING file If Mr Epstein is embarrassed by Mr Epsteins conduct thats Mr Epsteins problem And quite frankly Im pleased to hear that hes embarrassed by his conduct Maybe it will serve some deterrent effect in the future on Mr Epstein And if this case and what Mr Edwards has been through serves the purpose of increasing Mr Epsteins embarrassment over Mr Epsteins misconduct thats great I will tell you that the focus of public attention on this case has served the interests of my client because it has produced witnesses that we otherwise might not have known about And I welcome further public scrutiny with regard to this case for that reason because it will aid ultimately in the pursuit of justice We object to any restraints I will tell you that once this case is set for trial we will scrupulously avoid participation in any public comm nts with regard to this case that could pos 225ibly interfere with our ability to select a jury because the last thing we want to do is interfere with our ability to get justice in this case Thank you sir MR ACKERMAN Your Honor THE COURT Yes sir MR ACKE Directing your attention to pages five and six here is the bar rule and it specifically is ORANGE REPORTING restricted to a lawyer shall not make extraditial statements that a reasonable person would expect to be disseminated that will have a substantial likelihood of materially prejudicing an adjudicative proceeding THE COURT Let me ask you this question MR ACKERMAN And thats incorporated into the Gentile case which you asked about earlier THE COURT Okay MR ACKERMAN And THE COURT Im not sure that a Florida bar rule provides legal authority for me under the constitution to enter an order I mean it may result in sanctions to the lawyer MR ACKERMAN The bar rule thats exactly what Gentile says THE COURT Tell you what guys I understand both sides of the argument here What I need to do is go back and look at the cases Do you all have them here Its been a long time since I read the cases that MR ACKERMAN May we submit them to you THE COURT No I wartt to go back and take fifteen or twenty minutes and let me read the cases make a decision Thisis something you guys need to know right now because its going to affect also what the court reporter does ORANGE REPORTING MR ACKERMAN I dont have the Gentile case THE COURT You got the cite for me Oh is that one US I got that one I got the McIntosh case MR ACKERMAN I have McIntosh and Florida Freedom Newspapers I can give you Ive marked them with notes THE COURT I think I can do you have any of these cases Mr Scarola MR SCAROLA I dont have the cases themselves your Honor They are quoted in relevant part extensively in our memorandum THE COURT Let me take a look at these Ill be right back Okay MR SCAROLA Thank you sir BREAK TAKEN THE COURT Okay And I apologize for 267taking so long Its been awhile since Ive read these decisions quite frankly And I had an opport nity to read the ones youve given me as well_as some that were actually cited in some of the decisions cited after the ones you gave me Seems to me in reviewing these cases that Supreme Court of Florida as well as the Supreme Court of the United States made a distinction between the Courts discretion in limiting comments by attorneys during or prior to a proceeding as compared to the publics right to knowledge ORANGE REPORTING of trial proceedings as guaranteed by the freedom of the press in provisions in the United States constitution And specifically has held that prohibition on comments is in fact different from prior restraint And the press has a right to print anything and we cant or should not restrain that except in the most extreme of circumstances But the comments of counsel can be restrained Having said that it seems the Supreme Court has adopted Supreme Court of the United States has adopted a lesser standard when imposing limitations on comments by counsel as compared to any prior restraint of the press And the standard which is set forth seems to be substantial likelihood of material prejudice and the Supreme Court of the United States said that is a constitutional permissible balance between the First Amendment rights of attorneys and the guarantee of a fair trial Having said all of that at this point I will deny the motion simply on the basis that I have no evidence in front of me that would establish that that standard that comments by counsel or anything that counsel has said done or would do would have a substantial effect or substantial likelihood of material prejudice to this case at this point I think that is an evidentiary thing that requires me to make findings of fact and facts on the case before you actually say before you enter such a gag order you ORANGE REPORTING actually have to make finding of fact that would support it before you can prohibit the comments as an acceptable alternative to any prior restraint So Im denying the motion on that basis at this point in time because I just have nothing in front of me other than this one motion and hearsay documents which are attached at this point in time MR ACKERMAN May it be without prejudice Your Honor THE COURT Oh any ruling like this is without prejudice Okay But having said there I would hope counsel both sides would understand the necessity for having a fair trial in this case And one of the comments the Supreme Court made is that one of the reasons that the courts do have some restrictions on the attorneys aside from them being officers of the Court is sometimes their statements are taken more authoritatively than others So anyway Im denying the motion at this point and time Lets talk about I see nothing in the rules that would prohibit the press of obtaining a copy of this They can be in here photographing and videoing this entire proceeding as far as I know without my permission Couldnt they MR KNIGHT Your Honor the comment we made to the court reporter before is we havent ever researched the ORANGE REPORTING issue She should check with her office THE COURT Im not prohibiting it is what Im saying MR KNIGHT I dont know what their normal standards are and we did not want to comment on it THE COURT Whatever she wants to do is her choice Im not prohibiting the press from obtaining it if they want to obtain copies of the proceedings they can obtain it Im not entering any such order because it seems to me the cases also said the press is entitled to I also point out that most of these cases were criminal proceedings Ive never seen a civil case where there has been a gag order and perhaps there are But in my twelve years _eleven years on the bench Ive never seen one in this courthouse or heard of one but that doesnt mean its not proper in the right circumstances Okay Having said that lets move on Whats next MR ACKERMAN Your Honor that would be Three and THE COURT Three andc Okay Go ahead MR SCAROLA Your Honor this is the defendants motion for protective order and objections to a notice of deposition duces tecum addressed to the trustee Herb Stettin seeking a substantial number of e-mail communications exchanged between RRA attorneys and ORANGE REPORTING government officials and law enforcement officers The objection is to relevancy fiist There are ten thousand two hundred and fourteen pages of e-mails exchanged between RRA attorneys and government officials and law enforcement officers And in light of the fact that there is no pending claim against Mr Edwards that discovery certainly couldnt be relevant or material to any pending claim against Mr Edwards And in light of the allegations that we have made there is no reaso able argument that could be made that that discovery is reasonably calculated to lead to admissible evidence with regard to anything having to do with the counterclaim So in the present state of the pleadings no relevancy can be shown to the cou terclaim No claim is pending The best way for Your Honor to handle this at this point is to grant our motion for protective order and if allegations are made in the primary complaint which arguably could make this di covery relevant they can re-issue their subpoena and well re-address it in the context of whatever allegations are then made I cant imagine that they are going to make any allegations that could make this information relevant or material The primary concern_ that we have is that if relevancy generally were determined we need to review ten thousand two hundred and fourteen pages of e-mails in order to make ORANGE REPORTING determinations as to whether there are appropriate privilege and work-product objections we dont want to haveto do_that so THE COURT Let the ask you what privilege or work-product 267objections would exist between a communication between the law firm and third-parties MR SCAROLA The common interest privilege that existed between the prosecution of the civil laims and the criminal prosecution that was ongoing with regard to Mr Epstein The common interest the common interest privilege could clearly cover both attorney-client communications and work-product So there is potential privilege objections that need to be evaluated There are potential privilege objections that need to be evaluated But at this point there could be no possible relevancy as to those communications MR ACKERMAN Your Honor I think it"s important first of all if you have THE COURT Let me to:i Somebody prepare an order on the what.I just ruled You don"t have to write out all the details but just_ MR ACKERMAN I will Unless you want to do it MR SCAROLA No thats quite all right THE COURT All right MR ACKERMAN Your Honor I think its important ORANGE REPORTING to address this now even though youve dismissed the complaint because for these reasons and let me show you If you can take that packet thatI gave you I can demonstrate why this is relevant THE COURT What packet MR ACKERMAN The packet of the documents that I submitted to you THE COURT Oh okay MR ACKERMAN that Mr Scarola is looking at THE COURT Go ahead Im listening MR ACKERMAN Okay THE COURT Although I dont think I can get this thing open its sealed Do you have a letter opener handy Go ahead MR ACKERMAN Preliminary basis I think it is unfair at this point to stop discovery while we amend the pleading as it relates to this claim We will be able to prove and allege that Mr Rothstein ran a Ponzi scheme The e-mails that Im going to show you here are e-mails that Mr Rothstein sent to the investors using the Epstein cases We have proved in deposition that the Epstein case files that Mr Edwards was prosecuting were shown to these investors and their counsel we can establish that the investigators that were working on Mr Edwards case ORANGE REPORTING against Mr Epstein were showing the law firms case files to these investors We can show we can make an amendment on the damages that will cleat up the issues relating to damages And Im going to show the Court now the relevance of why on the overall claims so the Court doesnt delay the discovery but specifically the relevance with regard to this request and the inability at this point to deal with counsels argument on a privilege If you look at I think its the first document Okay This is an e-mail from Russell Adler to Brad Edwards copying Mr Nurik and it relates to the non-prosecution agreement which is in our complaint Mr Adler is saying Mr Edwards that he had a great conversation with Mr Nurik who is another lawyer in the firm about the agreement and they wanted me to discuss the possibilities Now this is an agreement thats already been entered into by Mr Epstein and the government Okay That takes us out of the joint prosecution joint defense argument that Mr Scarola made That also refers to the assets Okay We go to the next one This is from Mr Edwards to Mr Adler dated July 18th where Mr Edwards said to Mr Adler I want to talk to you about a few things If we make the right moves we may be able to ORANGE REPORTING force Epstein to settle for a lot of money but we have a couple of issues to deal with The next one deals with Qtask and that is here for two reasons One is to demonstrate to you why we still need those records down the road But also to show how Mr Edwards is using,,the media to feature the firm and the Epstein case which we believe was part of the Ponzi scheme When you go to the next one its an e-mail from Mr Edwards to Mr Kassel who is another lawyer that is representing some of the v-ictims in the crime victims rights act where they say we have nothing more on moving assets And thats in the first part And down below section three he says I still think collection is going to ultimately be the key issue and they have lack of proof of transfer of assets Now in the federal court proceeding they filed a pre-judgment motion to prevent the transfer of assets which was denied And here they are acknowledging potentially their lack of proof of being able to do it The next one is from Mr Edwards to someone in his firm directing her to send third-party subpoenas for prescription records which werent at issue and which we had placed in the complaint The next one is is where Mr Edwards is saying ORANGE REPORTING to one of the secretaries requesting a meeting with Scott at some point to discuss Epstein Now this is particularly important now and as I go through because Mr Edwards has testified in his deposition that he only had a few he had almost no.conversations with Mr Epstein MR KNIGHT Mr Rothstein MR ACKERMAN Im sorry Mr Rothstein Thank you Where an expletive deleted was used and claims privilege on the other conversation So then we have Im sorry I skipped one Do you have the there is one from Cara Holmes who is an ex FBI agent that is saying to Mr Edwards lets go I dont have it right in front of me because but you have it right there THE COURT I think our best bet is to go after the close friends MR ACKERMAN Go after his friends Which we contend supports our abuse of process claim Then we go to which is Mr Edwards to Mr Fiston one of the investigators of Mr Jenny who he in his deposition denies having this type of conduct with and talks about audio monitoring and recording in the law firm And that someone talking on the speaker phone can be recording that Now weve alleged in the complaint that ORANGE REPORTING Mr Rothstein represented to these investors that he had high-tech electronic surveillance equip1:tent in order to make this Ponzi scheme go With regard to this motion specificaliy Mr Edwards is directing an e-mail to two investigators Mr Jenny and Mr Fiston and Mr Roberts is a third investigator and Cara Holmes the lawyer we just mentioned speaking to the U.S Attorney She said if we have proof of him being out of Florida they will be in violation of the agreement and she will prosecute him Her and the state attorney both called on probation This is why we want to get these records because.we believe that they were purposefully going out of their way in an effort to revoke his probation and this was subsequently a portion of something that was litigated before the federal court and found not to be accurate talks about serving Alan Dershowitz which we discussed earlier is talking about taking Mr Trumps deposition And we can put those matters into the complaint as you talked about earlier is the proposed subpoena for Dershowitz And Alan Dershowitz was one of Mr Epsteins criminal lawyers in the criminal co plaint criminal cases and theyre subpoenaing him for deposition in this case ORANGE REPORTING Now is a memo from Ken Jenny to Scott Rothstein advising him that the lawyers and investigators working on the Epstein matter are meeting on the twelfth floor at two p.m to discuss where we are in the investigation And this is crucial for a number of reasons because it provides one of the links we believe between Mr Rothstein and Mr Edwards through these investigators where Mr Scott Rothstein is going to these meetings learning what is going on and this is the same time period where he is pumping up his cases these Epstein cases to these investors which well show in subsequent e-mails Okay Now we begin the e-mails that Rothstein Mr Rothstein is sending to the various investors A Discala is one of the investors And then if you go to Mr Rothstein is ending out to Frank Priam who I believe is one of the investigators we have no money in for this client She left screaming This is really bad We can lose the entire plaintiffs group which we believe related to Mr Epsteins cases If you look at again we have another meeting for Mr Edwards to the number of people that were involved to discuss this matter on October 22nd Mr Rothstein in says I cannot have this blow-up in my face These clients talk to each other If I burn this client I can end up losing all my clients in the ORANGE REPORTING Epstein case And this is occurring within the same day that these people are meeting to discuss the case If you flip over to Mr Rothstein is sending the e-mail to A.J Discala Clockwork an investor 267oean Kretscl 265ner who I mentioned and Frank Priam and at the last sentence he states my client clearly feels I have lied to her about her funding She is one step away from going to another lawyer and the Florida Bar The next one we have another meeting going to all of these people in the law firm Okay And then we have the documents of the Epstein case that were in Mr Rothsteins office So we have contrary to what Mr Edwards has testified in the deposition these documents establish that Mr Rothstein conducted the.Ponzi scheme with investors for the Epstein cases and unlike Mr Edwards testimony theres numerous meetings MR SCAROLA Im sorry to interrupt Your Honor but Mr Edwards has never ever denied that Mr Rothstein was engaged in a Ponzi scheme And to tell this Court that he has testified in his deposition that that didnt occur thats just false I dont know what this is all about but what we"re supposed to be talking about is whether the documents that were subpoenaed with regard to the federal government have anything to do with the pending ORANGE REPORTING counterclaim and I havent heard a word about that MR ACKERMAN Your Honor I have THE COURT Lets do kind qf focus in on the issue here MR ACKERMAN I will The point of this was to establish the parameter from which we made the request to show the relevancy of it The point Im trying to make with Mr Edwards is that he testified there was a limited number of people involved in the prosecution of this case against Mr Epstein when these documents clearly show that thats not the case So we have requested because we believe at the time they get the non-prosecution agreement that deal is over with there is no basis at all to assert a joint privilege claim Instead what it appears to be is that they are looking to try and interfere with the non-prosecution agreement And so we because that part of our theory of our case if you go to the subpoena Exhibit we have listed all e-mail communications between the attorney and employee of this Rothstein firm which list these people which we believe were involved with it and we specifically list the U.S Attorney the State Attorney the Federal 267Bureau of Investigation the Palm Beach Police Department.and any investigator working for the state of Florida and anyone that represented an individual with a claim Now if you go to ORANGE REPOR ING THE COURT Wait a minute Where is the MR ACKERMAN If you go to my response THE COURT Im looking at your response Okay MR ACKERMAN Okay Under the one THE COURT I got it One MR ACKERMAN Next page Schedule A is the MR KNIGHT Let the judge tch up with you_ MR ACKERMAN Im sorry Schedule A has the documents subpoenaed HE COURT Okay Go ahead MR ACKERMAN If you go to Exhibit in response to an e-mail from Mr Litman is the attorney for the bankruptcy trustee we gave him the specific names for a specific search for this subpoena As you can see there are lawyers in the U.S Attorneys office There are people in the Palm Beach Police Department There are people in the And there are people in the State Attorneys Office If you go to Exhibit this is Mr Litmans response He talks about refined e-mail search which sought documents reflecting the communications between RRA lawyers and government officials which if not all are law enforcement officers He has a disc of those documents that are responsive and that are Bates stamped THE COURT Where that ORANGE REPORTING MR ACKERMAN That"s Exhibit to my response THE COURT Okay Go ahead Really focus in on the issue as to relevance at this point and time MR ACKERMAN The relevance is Your Honor first of all we believe that part of this Ponzi scheme was designed to do thin_gs to Mr Epstein so that Mr Rothstein could tout those things to these investors to increase the amount of money that they were investing In our amended complaint we went through the things that he told the investors That they had the eavesdropping equipment THE COURT This is this is the government This is the government not the investors Its not communications with the investors What are you you looking for any communications between U.S Attorneys police and these people How I mean MR ACKERMAN Because we believe there was an effort to torpedo this non-prosecution agreement We believe that they were taking steps to cause a breach or get the government to revoke it after Mr Epstein had agreed to it We believe that that is an abuse of process Subpoenas in those civil cases THE COURT Let me get this straight Are you saying that an alleged victim of a crime has no right to be involved in or to petition the government or even to suggest to the state attorney or anybody else that what ORANGE REPORTING theyre doing is contrary to their interest and get it revoked you think that is an abuse of process MR ACKERMAN When the agreement has already been made Okay Your Honor and 267this is this was an agreement that was reached Okay And they"re attempting to undermine the agreement THE COURT Im having trouble here Youre telling me or youre suggesting that a victim cannot go to the government even after a reached agreement and say you know this is bad I didnt have the input put into it or whatever the reason they think it shouldnt be existing I mean isnt that MR ACKERMAN Your Honor first of all THE COURT You think thats an abuse of process MR ACKERMAN Were not talking the victims Were talking about RRA doing this And not only that we wont know until we get them to see whether theyre related to the victim or related to this case You don"t have to do an in camera review We can look at the documents and determine whether they relate to a victim They"re still not privileged Theyre going to third-parties We dont have a privilege issue here If he is advocating a case on behalf of his victims there is no privilege Hes potentially in an adversary situation and there is a present adversary procee ing involving this crime which I ORANGE REPORTING have placed in this complaint But if he is advocating that then there is no privilege and we should be able to look at those documents to see if in fact thats what they were doing or they were using it based on what Ive given you to show that they were really trying to to effectuate this Ponzi scheme THE COURT These are relevant to show what again I really Im sorry Im dense but MR ACKERMAN Your Honor we believe that Mr Rothstein and we believe Mr Edwards participated in this undertook a number of things in the Epstein lawsuits that would assist them with the marketing of this investment One of the things we believe they did was to proceed to interfere to proceed to destroy this non-prosecution agreement that had already been reached between the government and betw_een Mr Epstein We believe that they undertook surveillance for example in order to effectuate that we believe that had nothing to do with these cases that they were prosecuting against Mr Epstein on these three people We believe it was a concerted effort to attempt to have Mr Epsteins probation violated And if you look at the privilege log there is a designation between Paul Kassel and Mr Edwards relating to violating his probation ORANGE REPORTING THE COURT Is there already a privilege log regarding these There is not right MR ACKERMAN There is a privilege log that just describes the subject matter of that communication It does not--relate to this document because the privilege log was not prepared with the documents were talking about THE COURT Okay So we dont have a privilege log MR ACKERMAN Not related to these THE COURT Okay I understand Yes sir MR SCAROLA It is extremely frustrating to have counsel repeatedly talk about what he believes when his beliefs are neither relevant nor based upon facts and indeed are directly contrary to the facts The crime victims right act complaint filed by Mr Edwards was filed by Mr Edwards before Mr Edwards ever had any association whatsoever with RRA and before he ever filed any civil action on behalf of his clients becaus.e his client victims were upset about the sweetheart deal that Mr Epstein had gotten he had every right he Mr Edwards had every right and indeed a responsibility to his clients to vigorously petition the government for the redress of what they perceived to be a serious grievance To compound all of this_ there is no complaint that is ORANGE REPORTING presently pending And when counsel repeatedly talks about interference with the non-prosecution agreement is part of the theory of our case there is no case right now They haven:t stated a claim And the only claim they attempted to state was an abuse of process claim which has got nothing to do with tortious interference with a non-prosecution agreement They when repeatedly given an opportunity to relate this requested discovery to an effort to obtain evidence reasonably calculated to relate to the pending counterclaim are unable to do it because it cant be done Yo.ur Honor respectfully should grant our motion for a protective order And if after they have decided what it is they want to try to sue Mr Edwards for they have restated another claim and they believe that evide 267nce in the hands of the trustee with regard to communications between RRA attorneys and government officials and law enforcement officers is relevant and material to whatever riew fabricated claim they attempt to state we can come back before Your Honor and address it in that context Thank you sir MR ACKERMAN Your Honor may I give a brief response THE COURT Briefly yes sir MR ACKERMAN Again when I went through these ORANGE REPORTING documents Im trying to give the Court where our inferences can be that can lead to discoverable information okay And I think for the Court to postpone this until we have an amended complaint when we have this information in front of us which we believe shows a link to a set of patterns where they are talking about the non-prosecution agreement where theyre going after his friends where there are numerous meetings with the whole firm at the time this investment is being made that that shows a plan and why this is relevant And if the victims are adverse to the government then they 267dont have a joint privilege And I submit to you that these are relevant for what our ultimate theory of the case is going to be which you can see and what these documents that we have right here demonstrate THE COURT Okay What is the next one All of these orders will be out by Friday gentlemen because Im going actually be out by tomorrow So go ahead what is the next one MR ACKERMAN Okay Your Honor I would like this one Three involves an amended supplemental motion based on and to be able to compel Mr Edwards to answer questions at a deposition One of the things since we have a number of issues relating to privilege that theres one thing that I would like to address in this deposition because it deals with a request to produce on another ORANGE REPORTING motion that relates to damages okay If the Court can turn to Three Three And Im trying to save some time MR SCAROLA May I make a suggestion to save some time Mr Edwards has been deposed extensively already If there is any any.circumstance under which hes going to be deposed again it certainly ought to come after he knows what the charges are against him and not before MR ACKERMAN With one exception and the reason Im asking now are the damages in their counterclaim Okay The damages in their counterclaim he was asked extensively THE COURT What are you asking me to do Are you asking me to redepose him on this on question MR ACKERMAN Im willing to defer the deposition on this one issue to a time where it makes sense to address other issues But I dont want this objection that hes made in the deposition to keep me keep us from getting the information for his damages in the counterclaim which we have not received and is a subject for another motion They ra-ised objections as to how much you were making We asked him let me back up If you go THE COURT If this is a production request that ORANGE REPORTING is the request what we"re dealing with I mean seems nonsensical for me to decide questions in the deposition at this point.until we know exactly who is suing who for what and then you can get them altogether at one time MR ACKERMAN I can The only reason Im bringing i_t up is in the deposition we attempted to make an inquiry on financial parts that we believed were relevant to defending the counterclaim and he raised an objection of economic privacy That is also raised in our request to produce THE COURT You can still do request to produce if thats what you want to do I dont think we deal with it at the deposition stage MR ACKERMAN So just defer this motion THE COURT Im not going to seems silly to me to order unless you want him to just to answer it by if I grant lt answer it by way of interrogatory I dont think you are going to like that MR ACKERMAN Well at some point we need to redepose him on the damages THE COURT My point being is if.youre not going to accept an answer by way of interrogatories then youre going to have to redepose him anyway Were not going to do this today Not that It dont make any sense MR ACKERMAN Okay Well defer and go to the ORANG REPORTING request to produce THE COURT Which one is that MR ACKERMAN Okay Four A That also involves another issue To simplify things at this point THE COURT Four MR ACKERMAN we sent a request to produce Its attached to the motion Exhibit THE COURT Again youre dealing with privilege issues here as well as other stuff right MR ACKERMAN Well there are a number of objections here that dont ra-ise privilege Okay We asked for I believe if you go to Paragraph Five of the motion refers to Paragraph Six of the request where we requested fee sharing agreements relating to the case He has a counterclaim that seeks damages for among other things his reputation interference wi"th professional relationship loss of value of time require to be diverted from his.professional responsibilities Sb we believe the compensation relationship between Mr Edwards and RRA and anything related to the Epstein cases should been produced His objection to this number six says relevance not reasonably calculated to lead to discoverable information and there a no agreements with investors But we were not asking for investor agreements ORANGE REPORTING We wanted the agreements between Mr Edwards RRA and Rothstein THE COURT It does ask for investor MR ACKERMAN Pardon me THE COURT It says or investor MR ACKERMAN Okay THE COURT And/or any other attorney or investor related to any aspect of any plaintiffs case Not just MR ACKERMAN Right So he says that he doesnt have the investor ones but he hasnt produced the ones between Edwards RRA and_ Scott Rothstein THE COURT Okay MR ACKERMAN Number nine we ask for cost of payment that _the Rothstein firm had against Mr Edwards Theres no privilege claim there Pardon MR KNIGHT Against Mr Epstein MR ACKERMAN Against Mr Epstein Im sorry Your Honor Okay We felt that that was related to how the cases were being used We believe that this Ponzi scheme was designed to raise money to fund these cases Number ten we ask for the documents received by you relating to the assertion of a lien by the trustee Okay Because that relates to his compensation on the Epstein cases which is part of the damages of his counterclaim Because in order to find out what hes been damaged we ORANGE REPORTING need to know what he was making at the firm at the time and how the compensation formula was set up and what he earned on the various cases Number.22 is all documents that support your claim for damages Okay There is an objection to that that its not determined They cant formulate He says they dont know what the damages are Okay So we need to get that information THE COURT Okay 267Yes sir MR SCAROLA Not yet determined is not an objection it is an answer The only argument that was made that relates to relevance to the pending counterclaim is evidence with regard to damages claimed by Mr Edwards Mr Edwards is not claiming that he lost any income from RRA RRA has folded It went into bankruptcy It folded and went into bankruptcy as a consequence of Mr Rothsteins criminal activity We do not blame Mr Epstein for the destruction of the law firm and any economic loss that resulted as a consequence of the destruction of the law firm to Mr Edwards Therefore that line of inquiry is irrelevant and immaterial What.we have alleged is that Mr Edwards has been and continues to be diverted from other income producing activity as a consequence of the prosecution of these spurious claims whatever they may ultimately wind up ORANGE REPORTING being but what they have been up until now as well including the need defend against Florida RICCO claims that no longer.exist and civil remedies for criminal activity claims that no longer exist against him that his attention was diverted from other income producing activities as a consequence of the need to defend against this case Thats.got nothing to do with how much money he made historically i"f anything from RRA MR ACKERMAN Your Honor THE COURT What about the idea that past performance is a predictor of future performance in terms of MR SCAROLA Were talking about the lost value of the time thats what were talking about THE COURT I unde 267rstand that But how do we measure his time MR SCAROLA Because hes got a standard hourly rate _THE COURT Okay But I mean its like somebody saying well I can no longer detail cars and I make amount of dollars detailing cars but youve been doing that work for twenty years cant you find out what you did before MR SCAROLA Well I dont th.1nk thats an accurate analogy In the case of an attorney as I think ORANGE REPORTING it was Abraham Lincoln observed what we have to sell is our time And there is only a finite amount of that time Regardless of what Brad Edwards may have made from other sources historically or prospectively.what he may make in the future he lost time that could have been devoted to other income producing activity What probative value does it have to know for example that in Brad Edwards made and in Brad Edwards made if Brad Edwards could have made in if he wasnt obliged in to be sitting in this courtroom all day today as a consequence of having been sued for purposes of putting him in this courtroom instead of enabling him to make a living So I dont know how you draw any reasonable inference from that other information Would it be relevant to know what his standard hourly rate.is yes Would it be relevant to know how much time he has had to devote to this case those would be relevant and material inquiries But how much he made from other sources is so dependant upon factors that are entirely independant of the damages claimed in this case that they have no relevance and materiality And certainly in conducting a balancing test when they dont have probative value and we weigh against the absence of probative value the invasion into his economic privacy I suggest to Your Honor that the ORANGE REPORTING outcome of that balancing test ought to be Im sorry you dont get it at this point There just isnt enoug11 here for you to get it on the basis that he has told you that what he has lost is his time and the value of his time MR ACKERMAN May I respond THE COURT Yes sir just one second But if he couldnt sell his time before I mean like you say I just keep getting back to the fact that if his time was not productive or he couldnt sell his time before I dont know what he made with this law firm It may have been a lot of money it may have been nothing I dont know How could we say thats not at least calculated to lead to admissible ev dence in this case as compared to what the potential value may be MR SCAROLA That Your Honor would be a relevant question His ability to productively use his time in the past would be relevant But Brad is primarily a plaintiffs lawyer Thats principally the work that he does and has been doing Your Honor knows that this years productivity is a consequence or potentially a consequence of effort that was made and begun five years earlier THE COURT Let me suggest to you Ive had cases where the plaintiff in a personal injury case was a practicing attorney And they claim as a result of the ORANGE REPORTING injuries sustained in the accident theyre unable to work like they were and therefore have lost earnings or ability to earn money in the future as a result of the 267physical limitations injury or whatever it is I cant imagine in that kind of case the 267attorney could come and say well you cant find out what I made before this injury because that"s not relevant to what my time is worth today MR SCAROLA I absolutely agree with you In that kind of case I think that I think it is a relevant and material inquiry But lets assume those same set of circumstances and:the attorney says I was as a consequence of my injury Im a lawyer who works on_ an hourly basis and as a consequence of my 267injury I 267missed two weeks of work Or I work on a salary and I missed two weeks of work and this is how much I get paid and I didnt get paid for that two week period of time All you get MR ACKERMAN Your Honor THE COURT 267wait a minute MR SCAROLA All you get in terms of.discovery is what you ne_ed to know for what the value of that time was Thats all you get And you dont get to know what he was making five years earlier at a different law firm or what he may be making today because thats not relevant to the loss.that he had during that limited period of time ORANGE REPORTING And thats what were saying what Brad Edwards has lost is the value of that time that has to have been devoted to this case as a consequence of his having been the victim of an abusive process MR ACKERMAN Your Honor Ive attached the interrogatory answers Weve asked him what the amount of the damages alleged to be its in excess of one million They have said emotional distress mental anguish which Im not sure is a claim that can be brought But he"s asked for loss of reputation and standing in the community Loss of value of time spent in efense and in responding to this process In the counterclaim he talks about damages to his reputation interference with professional relationships loss of a value of time We cant begin to make that evaluation for the amount of money thats claimed without being able to look nto what relationships he had what fee agreements he had what money he made so that we can determine whether in fact he has been damaged by this or by something else thats happened in his life And one of the ways we can do it is by looking at what his compensation plan was What agreements he had with the firm What-he had with referral lawyers so we can establish whether there has been in fact an interference with these professional relationships and find some way to get to this million dollars which they are claiming and ORANGE REPORTING that we now have to defend So it is relevant and likely to lead to relevant information THE COURT Okay What about the I dont know if you mentioned this Mr Scarola the documents evidencing cost and payments of bills and the trustee lien for attorneys fees and costs MR SCAROLA Couldnt have any relevancy at all to the pending counterclaim and there is no pending cla.im THE COURT Okay MR ACKERMAN Your Honor that goes to what ultimately there is going to be a number of factors that make up what Edwards salary was and what he made and where it came from Okay And if he didnt actually net money from the cases but it had to go to the trustee 267that may affect the calculation and the number And what were trying to do is make a determination as to the overall impact on his ability to earn money and anything that relates to what the fee is what the costs were or affected his income and his relationships is relevant THE COURT Okay What is next Ill tell you what Im going to have to ta a short break You can stretch your legs as well Tell me which one is the next one MR ACKERMAN Hold on a second Your Honor I guess the next one would be the protective order relating ORANGE REPORTING to the deposition of the plaintiff and.a motion to compel relating to the plaintiff And then we have some objections to request to produce that each has lodged against the others MR SCAROLA We dont want to redepose Mr Epstein until after the new complaint is filed That can be deferred hear next back in a THE COURT Okay So which motion MR ACKERMAN Hold on a second THE COURT You all figure out few minutes MR SCAROLA Thank you sir BREAK TAKEN you 267want to and Ill be THE COURT Thank you I wasnt back there twiddling my thumbs Unfortunately not unfortunately Fortunately Im going on vacation Friday to see my grandchildren And needless to say it always happens there is all of these emergency motions that are filed that have to be ru,led on by Friday so I was dealing with one of our laws clerks.on issues Ive never heard before in my thirty-five years practicing law MR SCAROLA Law clerk THE COURT We have law clerks We have to share the law clerks but we have law clerks Okay Which one we ORANGE REPORTING doing now MR SCAROLA Three THE COURT Three Okay MR ACKERMAN It really in relation to Three and THE COURT Okay MR ACKERMAN Okay If I could also ask the Court to flip over to Just keep your finger there we filed basically what had occurred is that Mr Scarola re-noticed Mr Epstein for depdsition for video deposition on April of this past year Now I communicated with Mr Scarola to find out what the nature of the deposition was going to be about since he had testified extensively already in deposition Mr Scarolas response was that he was going to go into inquiry relating to public statements made by the plaintiff regarding his criminal a tivity any documents supporting he was going to take the position that the plaintiff had waived his Fifth Amendment right He had taken the position that he had lost his Fifth Amendment rights by operation of law and that was the basis of the deposition So I sent a request to produce out which is in based on that 267and received objections to all of those matters So we filed a motion for protective order based on the.grounds that he had already been deposed That.no meaningful 267grounds had been alleged to ORANGE REPORTING justify taking another deposition Particuiarly on the grounds that he had waived his Fifth Amendment and we had sought the discovery to find under tand the basis of that so we could understand why we were being my client was being deposed again And we had also requested in this motion that it not be a video deposition And the reason why we were requesting that it not be a video deposition is particularly meaningful in light of the discovery request that this Court is about to rule on where he may be asked several questions of a specific sexual nature that then are placed on videotape on and then goes into the public domain and the prejudice to that is incredible and should not be allowed So we filed this motion We advised counsel that unless we had to have a hearing on this and that before he could be redeposed on this new information we needed a hearing So we advised him in advance Mr Epstein we also I think had a problem with a date but he did not appear for the deposition so Mr Scarola has filed a motion to compel and for sanctions not to appear And so our position basically is that the grounds that he sought to depose him on that we were advised was not appropriate And that we did not particularly we had a good faith concern in iight of the discovery that he was attempting to take of the vast information into prior sexual issues 267that those become be placed on a video ORANGE REPORTING deposition and then become something in the pubiic domain THE COURT Are you asking me to prohibit the deposition prohibit the video deposition or prohibit or require him to 267produce the documents Iin not sure Or all of the above MR ACKERMAN If he"s going to depose him on the Fifth Amendment I want the documents that allege that that was that that was done I think thats a reasonable request Its a subject that he"s claimed numerous times that that has occurred And before any deposition occurs on that we want the documents that establish that Secondly we felt that he should not be deposed on that on that issue because all it would.do I mean he had already been extensivel.Y deposed And he Scarola needs to come in and establish why he wanted to take his deposition again and thats not his motion to compel for sanctions And that needs to be presented to the Court and approved before any sanctions or order compelling is set forth And third I cant the rules allow a video deposition 267but the Court can make restrictions on how its used And our concern in this case as I articulated before that if we end up going down this rabb.i trail of this the type of discovery that they have asked for the sexual nature and then that is on a video deposition and it can then be ORANGE REPORTING placed on the Internet we need to have a hearing on that so that.the Court can place some restriction on the use of that.so there is no unfair prejudice and we cant do that at this point in time So that was the basis of the 267motion THE COURT Yes sir MR SCAROLA This was a 265ally noticed video deposition Counsel has 267acknowledged the fact that there were communications about the scheduling of this deposition and wh-?-t we intended to do While a motion for protective order was filed on April of no effort was ever made by the plaintiff to set the motion for protective order for hearing They just unilaterally chose not to show up Theres a certificate of non-appearance we had a court reporter present we were there We were ready to proceed and they simply did not appear Mr Epstein has made numerous public statements to reporters And his denials about having engaged in misconduct with minors have been reported I want to ask him about those public statements that he has made I want to know whether the reports of those public statements are accurate or not accurate I want to know what the denials are based upon I want to know whether he admits having spoken to these reporters or denies having spoken to them at all All for purposes of determining ORANGE REPORTING whether there in fact has been a waiver of his Fifth Amendment right to remain silent Because he cannot choose to remain silent when he is deposed but speak to every court reporter who he can get in front of to tell them this is all silly because I really didnt do anything wrong THE COURT You aid court reporter I ont think you mec1;nt MR SCAROLA I meant reporter not court reporter you are correct Your Honor There is obviously significant evidentiary value to having these depositions recorded on video for purposes of later presentation before a jury The Florida Rules of Civil Procedure recognize that value And the concerns that Mr Ackerman has if they need to be addressed at all certainly dont need to be addressed by a prohibition of the videotaping of the deposition which while he appears to be backing off from that now is what his motion asked for We are entitled to take a video deposition As Ive told Your Honor I dont want to do it untilafter I know what the new allegations are in the new complaint We didnt have a new complaint as the time of this request for deposition but I do now want to delay it until such time as the video deposition can be taken to cover all of the issues that are raised in the new complaint ORANGE REPORTING But I do want to be able to video it when we take the deposition THE COURT Well Im not going to rule on when you have to take the deposition If tallow it Im just going to rule as to whether or not youre allowed to take the deposition MR ACKERMAN Your Honor may I respond THE COURT iq the areas we"re talking about Second whether or not you have to produce the documents you have requested MR SCAROLA Let me address that Your.Honor THE COURT And third whether or not it can be by video and if so what restrictions I put on any video thats done MR SCAROLA Had this deposition gone forward as it should have gone forward on April I obviously would not have been obliged to respond to a request to produce in advance of that deposition And the selection of particular documents for use during the course of the deposition is attorney work-product I ought not to have to give this party a script of what he is going to be asked about in advance I dont think Im obliged to do that Obviously Im not obliged to abs 267ent an order of the court and if the Court did order me to do it I would do it But I dont think that I should have to give them a script of ORANGE REPORTING what Im going to be asking about in advance and thats basically what theyre asking for MR ACKERMAN Couple of things Your Honor This motion was filed at the time you were basically saying I need to have an all day hearing and were going to defer any.ruling on discovery and stuff until you get your hands around this case And so based on the statements the Court made it was set for today and it would have been set.in May if we had reached it in May but thats why it wasnt noticed because it was my understanding that you were going to you needed to understand what the issues were before you could THE COURT Lets just deal with the subject of aspect not the procedural MR ACKERMAN Okay Secondly Mr Scarola hasn"t shown why he needs to be deposed again He hasnt shown why these matters werent addressed in the previous deposition Okay He has already been extensively deposed already and he hasn"t met his burden to show that he"s entitled to be deposed again qn these issues at least until THE COURT I understand the rule to be the opposite of what you just said I understand the rule to not limit the type scope of discovery unless its shown that its oppressive burdensome And that becomes your ORANGE REPORTING burden as I understand it the way the rule reads MR ACKERMAN I dont believe thats the case Your Honor THE COURT I thought it states it doesnt limit it unless MR ACKERMAN But the case law does allow protection _THE COURT True MR ACKERMAN to a party thats already been deposed THE.COURT I agree MR ACKERMAN And thats my point Hes already been extensively deposed THE COURT But I guess what Im saying maybe Im saying the same thing by different_ different wording MR SCAROLA What has repeatedly been referred to as an extensive deposition is a series of Mr Epstein reciting a script provided to him by counsel about how he is asserting his Fifth Amendment privilege even though he would like to be able to answer my questions but his lawyer has instructed him not to answer my questions and so Im not going to answer your questions and it goes on for about three paragraphs MR ACKERMAN Your Honor MR SCAROLA And its the same response we got ORANGE REPORTING over as to and the over and over again MR ACKERMAN Your Honor MR SCAROLA It was not an extensive deposition merits of this case And I have clearly stated why I need to redepose him because I believe he has now waived his right to Fifth Amendment privilege and I want to explore the basis for making that claim And in addition to which he will have made new assertions for new affirmative relief at some point between 267now and thirty days from now and I want to ask him a lot of questions about every claim for affirmative relief hes MR ACKERMAN Your Honor we keep going back to this If you look at Mr Epsteins deposition when he"s asked questions about the abuse what Im going to call the ab se of process case he answers those What he has taken the Fifth Amendment on are all of these sexual matters which we have contended have no bearing on this case THE COURT Were not dealing 225with that right now Were dealing with the questions that he wants to ask him with regard to the fact that he may or may not have waived his Fifth Amendment privilege just by making public statements or discussing it with third-parties Thats MR ACKERMAN Then I think then I think he needs to come to this Court and produce the documents to show that that 1as been waived before we have to undergo a ORANGE REPORTING deposition about it He had the opportunity to do it He hasnt shown that he could have or would have been able to do it before And at this point in time weve made a request for it And the Court I believe in order to properly protect the parties from someone thats already been deposed is to determine whether in fact there is a prima facie basis for a waiver otherwise we.re going to be arguing about it in the deposition THE COURT See heres part of the rule Im talking about It says unless the Court orders otherwise and under subdivision which is protecting you against oppressive et cetera et cetera The frequency and use of these is not limited I always understood you could take deposition as long as you are not abusing the system or otherwise subject to protective order because youre harassing whatever the rules says here I can get you the exact words MR ACKERMAN But there is the case law that the Court is aware of where if the party has already be.en deposed they have to come a party seeking to redepose him has to show the basis Now _hes THE COURT You got a case that says that MR ACKERMAN I dont have it with me Your Honor Im relying on my memory THE COURT I think thats an overstatement of ORANGE REPORTING _l what these cases say I think 267they say you can protect somebody against burden_some harassment oppres ive repetitive discovery I dont see it says that you cant take more than one deposition You can take five depositions if youre not going over the line But you know certainly if you want to give me a case that says that Okay Guys thats going to have to be it because I unfortunately have to do a couple of orders back there that I got that man 267working on Ill get these orders out by tomorrow for you And then what I want you to do is contact my JA and I would hope what I would like to do and I know you all dont want to do it this way necessarily I want to get a complaint out there that withstands the motion-to dismiss before we go into all these privilege things I just want to be able to know what the heck were talking about and what the lawsuit is about Because some of the things youve alleged in my view in the complaint at present may not fall within the area of abuse of process unless can you show me otherwise MR ACKERMAN What I would like to do Your Honor because I know the time is late I would like before our complaint is 267due to have a fifteen minute hearing I dont think it will.take longer that than where I can put to the Court one area where I believe the privilege issue has been waived and that is those documents that we are ORANGE REPORTING arguing about here have been produced to a third-party And I believe that that would.then allow us to get the documents that are subject to the privilege and we can use that to prepare our complaint The Court denies it we still are on track But its very important because they have maintained We have had six or seven months of litigation over these issues over privilege You issue a stay to us that we cant go subpoena the trustee and then when they are faced with the choice of having to deal with it in the bankruptcy court they turri over the records that we are under confidentiality agreement with to a third-party without that confidentiality THE COURT Set your fifteen minute motion and I listen to that But oth.erwise I want the other thing set as well Get some time so we can go through this stuff okay MR SCAROLA And that is not that is not delaying the thirty day period that they have to file their new complaint is that correct Your Honor THE COURT No MR ACKERMAN I just asking it be done before the thirty days so I have an opportunity to if you agree with me to get those documents THE COURT You will prepare the orders on the motion to dismiss on the motion for punitive damages and ORANGE REPORTING on the issue about the pre-trial_ gag order you need MR ACKERMAN Yes THE 267COURT Ill do the rest of these MR KNIGHT Enjoy your vacation Sounds it THE 267COURT Well yeah Thank you Court adjourned p.m ORANGE REPORTING like CERTIFICATE I Kathleen Ames RPR Notary Public State of Florida was authorized to and did stenographically report the foregoing proceedings and tha:t the transcript pages through is_ a true and accurate record of my stenographic notes I further certify that I am not a relative or employee or attorney or counsel of any of the parties attorney or counsel connected with the action nor am I financially interested in this ction Dated this 15th day of July KATHLEEN AMES RPR ORANGE REPORTING
