JEFFREY EPSTEIN Plaintiff VS SCOTT ROTHSTEIN individually and BRADLEY EDWARDS individually Defendants I Electronically Filed AM 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 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 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 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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 objections filed on behalf of the Counter-Defendant Ithe Counter Defendants Objections to Discovery other than privilege including but not limited to constitutional guarantees under the VI and XIV Amendments attorney/client privilege work product privilege are overruled The Counter-Defendant shall not be required to list any documents he contends are privileged pursuant to the VI and XIV Amendments March Order on Counter-Plaintij"s Motion to Strike Unamely Objections to Financial Discove,y attached hereto as Exhibit A emphasis added In that Order this Court explicitly and correctly ruled that Epstein shall not file a privilege log as to any documents he contends are Constitutionally Privileged Edwards did not and has not challenged that portion of this Courts Order However the Order entered by the Court on May appears to compel Epstein to create a privilege log as to those items/answers for which he asserted his Constitutional Privilege against Self-Incrimination A true and correct copy of the May Order is attached hereto as Exhibit As such Epstein requests that this Honorable Court clarify its May ruling with respect to the Constitutional Privilege issue already adjudicated in its March Order or alternative to reconsider its May I Order if it is in fact compelling Epstein to provide a privilege log with respect to those items/answers for which he asserted his Fifth Amendment Privilege against Self-Incrimination ARGUMENT A motion for clarification is the equivalent of a motion for rehearing Kirby Speight So 2d Fla 1st DCA Dambra Dambro So 2d Fla 4th DCA As such a motion for clarification is filed in accordance with Rule of the Florida Rules of Civil Procedure The purpose of a Motion for a Rehearing is to give the trial court an opportunity to consider matters which it failed to consider or overlooked Pingree Quaintance So 2d Fla 1st DCA Here Epstein is requesting that this Court issue another opinion in which it more clearly delineates its ruling with respect to the privilege log and Epsteins asserted Constitutional Privilege as pursuant to the most recent Order it appears that Epstein is being forced to waive his Constitutional Privilege The law is clear that a party may invoke his Fifth Amendment Privilege against Self Incrimination if he has reasonable grounds to believe discovery answers would furnish a link in a chain of evidence needed to prove a crime against him Rainerman Eagle Na Bank of Miami So 2d Fla 3d DCA Epsteins assertion of his Constitutional Privilege is a fundamental principle Piscotti Stephens So 2d Fla 4th DCA It need not be probable that a criminal prosecution will be brought or that the witnes answer will be introduced in a later prosecution the witness need only show a realistic possibility that the answers will be used against him Id at quoting Magid Winter So 2d Fla 4th DCA Here the mere act of providing information in a privilege log would constitute communicative testimony itself that is protected from discovery Id See also Wehling Columbia Broadcasting Sys 2d 5th Cir Even if the rules did not contain specific language exempting privileged information it is clear that the Fifth Amendment would serve as a shield to any party who feared that complying with discovery would expose him to a risk of self-incrimination The fact that the privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection citing Lefkowitz Cunningham U.S A witness invoking the privilege against self-incrimination is not required to establish that criminal prosecution is probable or imminent instead the court must only be satisfied that there is a reasonable possibility that the witness answer will be used against him See In re Keller Financial Services of Florida Inc B.R Bkrtcy M.D Fla see also Meek Dean Witter Reynolds Inc So 2d Fla 4th DCA finding a witness need only show a realistic possibility that an answer to the question will be used against him or her As demonstrated more fully below Epstein has already met this burden Epstein provided the following response to the Requests for Production for which he is asserting his Constitutional Privilege This Request for Production requires the identification of the existence of detailed financial information which communicates statements of fact Fisher United States U.S The act of production itself may implicitly communicate statements of fact that are testimonial in nature United States Hubbell U.S I have a substantial and reasonable basis for concern that these statements of fact that are testimonial in nature could reasonably furnish a link in the chain of evidence that could be used to prosecute me in future criminal proceedings See Hoffman United States U.S I cannot provide answers/responses to questions relating to my financial history and condition without waiving my Fifth Sixth and Fourteenth Amendment rights as guaranteed by the United States Constitution See Epsteins Responses lo Edwards Net Worth Discovery Request for Production Epstein has both demonstrated and articulated a substantial and reasonable basis for concern that the requested information could fonn a link in the chain of evidence that could be used to prosecute him in criminal proceedings both in his privilege log filed in response to the Courts March Order and by argument and proffer through counsel at each hearing held by the Court on this issue Specifically Epsteins substantial and reasonable basis for concern derives from the fact that Edwards is actively and vigorously seeking to invalidate a Non-Prosecution Agreement entered into between Mr Epstein and the United States Government Doe United Stales of America A portion of the Governments investigation and the Non-Prosecution Agreement which Edwards seeks to invalidate include allegations of financial crimes As such should Edwards be successful his ardent quest to invalidate the Non-Prosecution Agreement entered into between Epstein and the United States Epstein cou1d face the prospect of future prosecution which cou1d according to the Government include financial crimes Therefore Epstein must and will continue to assert to his rights as afforded to him by the Constitution See Piscotti Stephens So 2d Fla 4th DCA Urbanek Urbanek So 3d Fla 4th DCA As this Court is aware the Fifth Amendment privilege can be asserted in any proceeding civil or criminal in which the witness reasonably believes that the infonnation sought or discoverable as a result of his testimony could be used in a subsequent state or federal criminal proceeding Kastigar U.S U.S Moreover the privilege afforded not only extends to answers that would in themselves support a conviction but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant Hoffman U.S U.S In the case at hand Epstein was previously convicted and sentenced for certain crimes that may 267form the basis of his Fifth Amendment claims Likewise according to Edwards Mr Epstein may face future prosecution Edwardss o,vn allegations in his Fourth Amended Counterclaim support this asse11ion as Edwards himself claims that Epstein is the target of inquiry with respect to additional charges stemming from the very core of facts for which he already stands convicted Edwards is also vigorously seeking to overturn the Non-Prosecution Agreement between Epstein and the United States Government and has on numerous occasions made allegations of future prosecution against Mr Epstein As such it is irrefutable that Edwardss own pleadings in this case have proven Epsteins contention that he has a substantial and reasonable basis for concern of future prosecution Epstein has therefore properly asserted the Fifth Amendment in response to every question/request propounded by Edwards where an answer if provided could conceivably furnish a link in the chain of evidence needed to prosecute the claimant Accordingly if the Courts May I Order is compelling Epstein to provide a privilege log with respect to his Constitutional Privileges it is in essence forcing Epstein to waive this privilege See United States Doe U.S People Traylor Cal App.3d If the witness were required to prove the hazards he would be compelled to surrender the very protection the constitutional privilege is designed to guarantee See also In re Rothstein Rosenfeldt Adler P.A WL S.D Fla the court accepted a proffer from witness Deborah Villegass attorney regarding the possibility of future prosecution and held that the witness was within her rights to assert her Constitutional Privileges Finally the Courts Order is unclear as to whether or not a privilege log is required for Mr Epsteins responses to the Net Worth Interrogatories However because responses to Interrogatories must be verified sworn to under Oath they are irrefutably testimonial in nature and Epstein should not be compelled to provide a privilege log for the responses for which he asserts his Fifth Amendment Privilege Epstein asserted Constitutional Privileges to Interrogatories Nos through and including all subparts specifically stating This Interrogatory requires the provision of detailed financial information which communicates statements of fact Fisher United States U.S I have a substantial and reasonable basis for concern that these statements of fact that are testimonial in nature could reasonably furnish a link in the chain of evidence that could be used to prosecute me in criminal proceedings See Hoffman United States U.S I cannot provide answers/responses to questions relating to my financial history and condition without waiving my Fifth Sixth and Fourteenth Amendment rights as guaranteed by the United States Constitution As explained above Epstein has both demonstrated and articulated a substantial and reasonable basis for concern that the requested information could form a link in the chain of evidence that could be used to prosecute him in criminal proceedings Therefore Epstein will and must continue to assert to his right to the Constitutional Privileges See Piscotti Stephens So 2d Fla 4th DCA Urbanek Urbanek So 3d Fla 4th DCA CONCLUSION Accordingly for all of the reasons delineated above and in reliance upon the applicable law cited herein Jeffrey Epstein respectfully requests that this Court clarify or reconsider its Court Order dated May and such other and further relief as this Court deems proper WE HEREBY CERTIFY that a true and correct copy of the foregoing was served upon all parties listed below via Electronic Service this May Tonja Haddad Coleman Tonja Haddad Coleman Esq Fla Bar No TONJA HADDAD PA SE th Street Suite Fort Lauderdale Florida facsimile Tonja tonjahaddad.com Electronic Service List Jack Scarola Esq Searcy Denney Scarola et al Palm Beach Lakes Blvd West Palm Beach FL JSX SearcyLaw.com MEP Searcylaw.com Jack Goldberger 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 Esq Farmer Jaffe Weissing Edwards Fistos Lehrman Andrews Avenue Suite Fort Lauderdale Florida staff.efil pathto justice com Fred Haddad Esq I Financial Plaza Suite Fort Lauderdale FL Dee FredHaddadLaw.com IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR PALM BEACH COUNTY CIVIL DIVISION CASE NO JEFFREY EPSTEIN Plaintiff vs SCOTT ROTHSTEIN etc et al Defendants ORDER ON COUNTER-PLAINTIFFS MOTION TO STRIKE UNTIMELY OBJECTIONS TO FINANCIAL DISCOVERY THIS CAUSE came before the Court upon the Counter-Plaintiffs Motion to Strike Untimely Objections to Financial Discovery The Court heard argument of counsel reviewed the court file has reviewed the authorities counsel has cited has reviewed the discovery along with the objections filed on behalf of the Counter-Defendant Based upon the foregoing and after a thorough review of same it IS CONSIDERED ORDERED AND ADJUDGED as follows The Counter-Defendants Objections to Discovery other than privilege including but not limited to constitutional guarantees under the VI and XIV Amendments attorney client privilege work product privilege privacy privilege under the Florida Constitution or any other applicable privilege are overruled However as to any privileges other than a privilege against self-incrimination as guaranteed by the VJ and XIV Amendments of the United States Constitution the Counter-Defendant shall file a detailed privilege log outlining the documents and the applicable privilege The Counter-Defendant shall not be required to list any documents he contends are EXHIBIT A Epslein kolhstein el al Case Na Orde lage privileged pursuant to the VI and XIV Amendments The privilege log as well as more complete responses shall be filed within fifteen days of the date of this Order DONE AND ORDERED this _tt ay of Marc at West Palm Beach Palm Beach County Florida Copy furnished See attached list IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA JEFFREY EPSTEIN CASE NO CIVIL DIVISION AG Plaintiff SCOTT ROTHSTEIN etc et al Defendant ORDER DIRECTING PLAINTIFF TO PRODUCE A PRIVILEGE LOG FOR AN IN CAMERA REVIEW OF PLAINTIFFS ASSERTED PRIVILEGES AND work product privilege and third party privacy rights In addition to asserting the aforementioned privileges against the Defendants document production requests the Plaintiff also asserted the same privileges against many of the Defendants interrogatories The Plaintiffs Fifth Amendment objections were based upon the assertion that the identification and certification of the existence of certain documents would be self-incriminating Because of the Plaintiffs assertion that he could not identify the requested documents the Plaintiff did not provide to this Court a basis upon which to substantiate his non-constitutional claims of privilege On April the Defendant filed his Response to Epsteins Objections to Edwards Request for Production and Net Worth Interrogatories wherein he requested that this Court require a new privilege log for an in camera review to determine whether the Plaintiffs non-constitutional claims of privilege are valid LEGAL ANALYSIS The Plaintiff has asserted a Fifth Amendment privilege against self-incrimination as to essentially every request to produce documents and against the majority of the Defendants interrogatory requests Because the validity of the Plaintiffs Fifth Amendment objections are based upon the nature of the underlying act of compulsion the Plaintiffs objections are best divided into three categories A document requests directed towards the Plaintiff personally document requests directed towards the Plaintiff as a custodian of business records and interrogatory requests Accordingly each of these categories is considered in tum A Fifth Amendment Privilege in the Context of the PlaintifPs Production of Documents as an Individual The Plaintiff has responded to virtually every document request from the Defendant by asserting his Fifth Amendment privilege against self-incrimination A litigant may assert in the context of civil litigation a Fifth Amendment privilege against self-incrimination as to testimonial and communicative evidence See Fisher United States U.S Boyle Buck So 2d Fla 4th DCA With respect to the production of documents however the Fifth Amendment will not apply simply because the requested documents will incriminate the respondent See Fisher U.S at Instead the Fifth Amendment shields a respondent from document production when the compulsory act of production itse If is equivalent to incriminating testimonial evidence See id at Before a court can consider whether the act of producing documents is equivalent to incriminating 267testimony a court must first determine whether the act of production results in any testimony at all See id at The United States Supreme Court considered circumstances where the act of production was not testimonial in Fisher United States Id at In Fisher the requested documents consisted of work papers belonging to an accountant but in the possession of the respondent-taxpayer Id at The Court determined that the respondent tax payers act of producing the documents was not testimonial because I the documents were not prepared by the taxpayer the documents were of the type typically created by accountants the documents had been created voluntarily and the existence and location of the requested documents were a foregone conclusion Id at The Court considered the act of production in Fisher to be an act of surrender not an act of testimony See id at The Supreme Court considered a different set of facts where the act of producing documents was testimonial in United States Hubbell United States Hubbell U.S In Hubbell the government requested over pages worth of documents without knowing what the discovery request would produce See id at The Court described the facts that influenced its decision to classify the respondents production of documents as testimonial Given the breadth of the description of the categories of documents called for by the subpoena the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions The assembly of literally hundreds of pages of material in response to a request for 267any and all documents reflecting referring or relating to any direr.:t or indirect sources of money or other things of value received by or provided to an in lividual or members of his family during a 3-year period is the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition Entirely apart from the contents of the pages of materials that respondent produced in this case it is undeniable that providing a catalog of existing documents fitting within any of the broadly worded subpoena categories could provide a prosecutor with a lead tn incriminating evidence or a link in the chain of evidence needed to prosecute Id Notably the government argued in Hubbell that the respondent was a sophisticated businessesman and like the accountants working papers in Fisher it was expected that the respondent would have the type of tax and accounting documents it had requested See id at The Court rejected this analogy by stating that unlike in Fisher the government had no independent prior knowledge of the existence or whereabouts of the documents produced by the respondent See id at The Government cannot cure this deficiency through the overbroad argument that a business man such as the respondent will always possess general business and tax records that will fall within the broad categories described in this subpoena The Court noted that the nature of the testimony inherent in the act of production was the respondents certification as to the existence custody control and authenticity of the documents Id at The Supreme Court has recognized that determining whether an act of production is incriminating necessarily depends upon case-specific facts and circumstances See Fisher U.S at In the instant case the Defendants requests for production-vary in scope Some of the Defendants document requests are broad which resemble the requests in Hubbell and some of the document requests are specific which resemble the requests in Fisher Further some of the Defendants document requests are of the type that the Plaintiff is certain to possess as was the case in Fisher while other document requests will likely generate an unknown result as was the case in Hubbell Thus this Court finds that some of the Defendants requests for production have a high probability of resulting in testimony on behalf of the Plaintiff and some of the requests for production have a low probability of resulting in testimony on behalf of the Plaintiff Even if the Plaintiffs act of production does equate to testimony however the Plaintiff must still show via an in camera inspection that the Plaintiff has reasonable cause to fear that the testimony inherent in the act of producing the documents would be self-incriminating See Hoffman United States U.S Austin Barnett Bank So 2d Fla 4th DCA Fifth Amendment Privilege in the Context of the Plaintiffs Production of Documents as a Custodian of Business Records The Plaintiff has raised Fifth Amendment objections to document requests targeted towards business records in his possession A corporation or other artificial business entity has no Fifth Amendment rights See e.g Grant United States U.S Hale Hinkel I U.S Fineberg United States F.2d 9th Cir In the rare situation where a custodian of business rer;ords can11ot produce requested documents without the act of production qualifying as self-incriminating testimony under the analysis of Fisher and Hubbell the business is not relieved of the obligation to comply and must find or appoint another agent to produce the documents See Bellis United States U.S In re Grand Jury Subpoenae Duces Tecum F.2d 2d Cir Thus this Court finds that even if some of the Defendants requests for business documents results in testimony on behalf of the A sole proprietorship may be the only exception to this rule See in re Matter of Grand Jury Empanelled F.2d 3d Cir Plaintiff and even if this Court determines that trie Plaintiffs act of producing such business documents is self-incriminating the underlying business entity that owns the documents cannot be relieved of the obligation to produce Fifth Amendment Privilege in the Context of the Plaintiffs Answers to I nt_errogato ries The Plaintiff has asserted his Fifth Amendment privilege against self-incrimination in connection with many of the Defendants interrogatory requests Unlike a request to produce documents the testimony inherent in ru interrogatory is the answer itself Therefore this Courts analysis towards the Plaintiffs objections involves a standard Fifth Amendment analysis focused on the nature of the question asked and whether the respondent has reasonable cause to fear that answering the question may result in self-incrimination Hoffman U.S at To sustain the privilege it need only be eyident from the implications of the question in the setting in which it is asked that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result Id at A court may compel an answer if after considering the foregoing it clearly appears to the court that the witness or in this case the respondent was mistaken See id at citing Temple Commonwealth Va AND RULING With respect to the Plaintiffs act of producing documents even if the Plaintiffs actions do qualify as individual testimony under Fisher and Hubbell this Court must still detennine whether the Plaintiff has a reasonable basis to fear self-incrimination as a result of the testimony inherent in his act of document production Austin Barnett Bank So 2d Fla 4th Article I Section of the Florida Constitution provides protection no greater than that afforded under the federal constitution See Commitment of Smith Stale So 2d Fla 2d DCA State Tsavaris So 2d Fla 2d DCA DCA Where a claim of privilege is asserted the trial court should hold an in camera inspection to review the discovery requested and determine whether assertion of the privilege is valid Further because the Plaintiff has asserted that providing the Court with a standard privilege log to substantiate his claims of privilege would incriminate him this Court must conduct an in camera inspection to both preserve the Plaintiffs constitutional rights and to determine whether the privilege does in fact apply See Bailey State So 3d Fla 3d DCA Del Carmon Calzon Capital Bank So 2d Fla 3d OCA State Dep of Ins Schuler So 2d Fla 3d DCA noting a mere conclusory assertion that the respondents constitutional privileges against self-incrimination are implicated is insufficient to discharge the respondents burden of demonstrating that there exists a reasonable or realistic possibility that production of the respondents remaining business records will lead to criminal prosecution Therefore a final determination on the validity of the Plaintiffs Fifth Amendment and other non-constitutional claims of privilege will first require the Plaintiff to provide this Court with a privilege log substantiating his fear of self incrimination under Fisher and Hubbell via an in camera inspection as well as the basis for the other privilege objections This Court finds that even though some of the Defendants requests for production are unlikely to result in testimony on behalf of the Plaintiff in the interest of preserving the Plaintiffs constitutional rights this Court will conduct an in camera inspection as to all of the disputed documents In the event that this Court is unable to determine from an in camera inspection of a privilege log whether the Plaintiffs claims of privilege are valid the Court may hold an ex-parte hearing with the Plaintiff to further clarify the Plaintiffs objections and allow I the Plaintiff to further substantiate his claims of privilege Finally because the Plaintifrs assertion of Fifth Amendment privilege has heretofore caused the Plaintiff to fail to substantiate his assertions of nonMconstitutional privileges this Court finds that the Plaintiff shall include in a privilege log the basis for the Plaintiffs nonMconstitutional claims of privilege in addition to the basis for his Fifth Amendment claim of privilege It is therefore ORDERED and ADJUDGED that the Plaintiff will provide to this Court for an in camera review a detailed privilege log for all documents not previously and fully provided to the Defendant containing a list of the requested documents which identifies each document dearly indicates all asserted privileges for each document and describes the basis for each asserted privi1ege within thirty days from the date of this Order A Status Conference is hereby scheduled for Thursday May at a.m Courtroom 9C Palm Beach County Courthouse North Dixie Highway West Palm Beach Florida DONE and ORDERED in ambers in West Palm Beach Palm Bea County Florida this day of Copies furnished to Jack A Goldberger Esq Australian Avenue South Suite West Palm Beach FL jgoldberger agwpa.com smahoney agwpa.com Marc Nurik Esq One Broward Blvd Suite Jrt Lauderdale FL marc nuriklaw.com Brnd ley Edwards Esq North Andrews Ave Suite fort Lauderdale FL staff.cfile pathtojustice.com Tonja Haddad Coleman Esq SE 7th Street Suite Fort Lauderdale FL I tonja tonjahaddad.com debbie tonjahaddad.com Fred Haddad Esq One financial Plaza Suite Fort Lauderdale FL dee fredhaddadlaw.com haddadfm aol.com Jack Scarola Esq Palm Beach Lakes Blvd West Palm Beach FL jsx searcylaw.com mep searcylaw.com
