Filing E-Filed PM JEFFREY EPSTEIN Plaintiff vs SCOTT ROTHSTEIN individually BRADLEY EDWARDS individually and L.M individually Defendant I IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY FLORIDA CASE NO EDWARDS MOTION IN LIMINE TO STRIKE THE JUNE AFFIDAVIT OF JEFFREY EPSTEIN AND TO EXCLUDE EVIDENCE AS TO WHICH DISCOVERY WAS WITHHELD UNDER CLIAMS OF PRIVILEGE WITH INCORPORATED MEMORANDUM OF LAW After consistently asserting the privilege against self-incrimination and invoking attorney client privilege to deny discovery sought by Counter-Plaintiff BRADLEY EDWARDS after repeatedly declining based on privilege to substantively respond to interrogatories requests for production and deposition questions and weeks before the agreed discovery cut-off in this year old lawsuit Counter-Defendant JEFFREY EPSTEIN has sought to support a renewed Motion for Summary Judgment with a personal affidavit alleging facts about which discovery had been previously withheld on claims of privilege Counter-Plaintiff files this motion to preclude EPSTEIN from using that which he has consistently refused to produce throughout the litigation EPSTEINS attempt at this late stage FILED PALM BEACH COUNTY FL SHARON BOCK CLERK PM EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld to selectively abandon his privilege objections and essentially start the discovery process over again would cause Counter-Plaintiff substantial and unavoidable prejudice To preserve Counter Plaintiffs right to a fair and prompt trial the Court must reject EPSTEINS strategic maneuver THE FACTS EPSTEINS PRIVILEGE ASSERTIONS EDWARDS DISCOVERY EFFORTS Epstein filed a lawsuit intending from the outset to refuse to allow any real discovery about the merits of his case Instead when asked direct questions about whether he had any basis to support his claims against Bradley Edwards Epstein hid behind the Fifth Amendment and assertions of attorney-client privilege As a result under the sword and shield doctrine widely recognized in Florida case law his suit could not have been legitimately prosecuted He then consistently declined to provide information directly relevant to the central issues in this litigation including issues he now seeks to address by way of an affidavit filed in suppo1i of his motion for summary judgment The law is well settled that a plaintiff is not entitled to both his silence and his lawsuit Boys Girls Clubs of Marion County Inc JA So 3d Fla 5th Dist Ct App Griffin concurring specially Thus a person may not seek affinnative relief in a civil action and then invoke the Fifth Amendment to avoid giving discovery using the fifth amendment as both a sword and a shield DePalma DePalma So.2d Fla 4th Dist Ct App quoting Delisi Bankers Insurance Co So.2d Fla 4th EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld Dist Ct App Put another way a civil litigants fifth amendment right to avoid self incrimination may be used as a shield but not a sword This means that a plaintiff seeking affirmative relief in a civil action may not invoke the Fifth Amendment and refuse to comply with the defendants discovery requests thereby thwarting the defendants defenses Rollins Burdick Hunter of New York Inc Euroclassic Limited Inc So.2d Fla 3rd DCA see also Zephyr Haven Health Rehab Center Inc Hardin ex rel Hardin So.3d Fla 3rd DCA where claimant asserted privilege over attorneys fees anangement while simultaneously seeking attorneys fees this attempt to use the fee mTangement as both a sword and shield must fail Highlighted copies of Epsteins deposition transcripts together with various discovery responses are attached as an Appendix to this motion Here Epsteins suit against Edwards purported to do precisely what the well settled law forbids Specifically he ostensibly sought to obtain affirmative relief-i.e forcing Edwards to pay money damages-while simultaneously precluding Edwards from obtaining legitimate discovery at the heart of the allegations that formed the basis for the relief Epstein claimed to be seeking Those same assertions of privilege stood as a wall blocking every inquiry by Edwards into whether Epstein had any reasonable basis to support the claims of tmiious and criminal wrongdoing he raised against Edwards EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld Now by way of his affidavit he seeks to leave the wall standing but to toss over selected assertions that remain completely shielded from cross-examination and the test of other related discovery Epstein asse1ied his privilege against self-incrimination over times during his depositions and refused to answer such basic questions as Specifically what are the allegations against you which you contend Mr Edwards ginned up Deposition of Epstein Pg Appendix Exhibit I What specific discovery proceedings did Mr Edwards engage in which you contend form the basis of your lawsuit Deposition Pg Well which of Mr Edwards cases do you contend were fabricated Deposition Pg Are you now telling us that there were claims against you that were fabricated by Mr Edwards Deposition Pg Is there anything in L.M.s Complaint that was filed against you in September of which you contend to be false Deposition Pg I would like to know whether you ever had any physical contact with the person referred to as Jane Doe in that federal complaint Deposition Pg Did you ever have any physical contact with E.W Deposition Pg What is the actual value that you contend the claim of E.W against you has Deposition Pg EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld Describe in your own words all interactions you have had with the individual identified in this action as L.M including but not limited to the dates places participants in witnesses to and a description of all sexual activity involving Objections to Interrogatories Appendix and The legitimacy of the sexual molestation claims prosecuted by Edwards against Epstein addressed in these questions were the central focus of Epsteins claims against Edwards and the mi1Tor image issues on which Edwards claims against Epstein are based Epsteins refusal to answer these and literally every other substantive question put to him in discovery deprived Edwards of even a basic understanding of the evidence alleged to support claims against him Moreover by not offering any explanation of his allegations Epstein deprived Edwards of any opportunity to conduct third party discovery and any opportunity to challenge Epsteins allegations It is the clear law that the chief purpose of our discovery rules is to assist the truth-finding function of our justice system and to avoid trial by surprise or ambush Scipio State So.2d Fla and full and fair discovery is essential to these important goals McFadden State So.3d Fla th Dist Ct App Accordingly it is important for the Court to insure not only compliance with the technical provisions of the discovery rules but also adherence to the purpose and spirit of those rules in both the criminal and civil context McFadden So.3d at Epstein repeatedly blocked full and fair discovery and clearly EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld never intended to provide the discovery that would have been essential to any intended legitimate good faith prosecution of his claims and which is also critically relevant to his attempt to assert a good faith basis for his maliciously prosecuted claims against Edwards EDWARDS IS ENTITLED TO ADVERSE INFERENCES FROM EPSTEINS INVOCATION OF THE FIFTH AMENDMENT Epsteins repeated invocations of the Fifth Amendment raise adverse inferences against him that leave no possibility that a reasonable fact finder could ever have reached a verdict in his favor and which are in direct contradiction to the assertions in his Affidavit He cannot claim to have relied on press reports or the allegations in someone elses Complaint if he had personal knowledge that the reports and allegations were inaccurate And so for example Epstein could not reasonably rely on allegations in the Sherer Complaint about exaggerated claims against Epstein if Epstein knew the claims were accurate Neither can he deny their accuracy if he precludes discovery into their accuracy In ruling on a summary judgment motion the court was obliged to fulfill a gatekeeping function and ask whether a reasonable trier of fact could possibly reach a verdict in favor of the plaintiff Willingham City of Orlando So.2d Fla th Dist Ct App emphasis added Given all of the inferences that are to be drawn against Epstein no reasonable finder of fact could conclude that Epstein was somehow the victim of improper civil lawsuits filed against him Instead a reasonable finder of fact could only find that Epstein was a serial molester EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld of children who was being held accountable through legitimate suits brought by Edwards and others on behalf of the minor girls that Epstein victimized-suits that were vigorously ethically and legitimately prosecuted by the victims lawyers including Edwards It is well-settled that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them Baxter Palmigiano U.S accord Vasquez State So.2d Fla App The reason for this rule is both logical and utilitarian A party may not trample upon the rights of others and then escape the consequences by invoking a constitutional privilege at least not in a civil setting Fraser Security and Inv Corp So.2d Fla th Dist Ct App And in the proper circumstances Silence is often evidence of the most persuasive character Fraser Security and Inv Corp So.2d Fla th Dist Ct App quoting United States ex rel Bilokumsky Tod U.S Brandeis In the circumstances of this case a reasonable finder of fact would have evidence of the most persuasive character from Epsteins repeated refusal to answer questions propounded to him To provide but a few examples here are questions that Epstein refused to answer and the reasonable inference that a reasonable finder of fact would draw Question not answered Specifically what are the allegations against you which you contend Mr Edwards ginned up Reasonable inference No allegations against Epstein were ginned up Question not answered Well which of Mr Edwards cases do you contend ظ6Ec 4?UV a g??D 3Y H??m e?.j?Z iH RQ Us y?D t:?i DCi z?N fs?5?aDG 3ޅK qo?g γl _vY fU??z QH U??h A 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Which Discovery Was Withheld were fabricated Reasonable inference No cases filed by Edwards against Epstein were fabricated Question not answered Did sexual assaults ever take place on a private airplane on which you were a passenger Reasonable inference Epstein was on a private airplane while sexual assaults were taking place Question not answered How many minors have you procured for prostitution Reasonable inference Epstein has procured multiple minors for prostitution Question not answered Is there anything in L.M Complaint that was filed against you in September of which you contend to be false Reasonable inference Nothing in L.M.s complaint filed in September of was false i.e as alleged in L.M.s complaint Epstein repeatedly sexually assaulted her while she was a minor and she was entitled to substantial compensatory and punitive damages as a result Question not answered I would like to know whether you ever had any physical contact with the person referred to as Jane Doe in that federal complaint Reasonable inference Epstein had physical contact with minor Jane Doe as alleged in her federal complaint Question not answered Did you ever have any physical contact with E.W Reasonable inference Epstein had physical contact with minor E.W as alleged in her complaint Question not answered What is the actual value that you contend the claim of E.W against you has Reasonable inference E.W.s claim against Epstein had substantial actual value Without repeating each and every invocation of the Fifth Amendment that Epstein has made and the reasonable inferences to be drawn from those invocations of privilege the big picture is unmistakably clear No reasonable finder of fact could rule in Epsteins favor on his claims against Edwards or on his defense against Edwards claim for malicious prosecution Accordingly Edwards was entitled to summary judgment based on the Fifth Amendment inferences that the EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld jury would draw because Epstein has effectively conceded through invocation of the Fifth Amendment and by his later voluntary dismissal that all allegations against him were both reasonably based and true Those same privilege asse1iions preclude the consideration of Epsteins Affidavit But even if the Affidavit were not to be stricken the adverse inferences that arise from Epsteins privilege asse1iions rebut his Affidavit and require denial of his Motion for Summary Judgment THE LAW REGARDING WITHDRAWAL OF PRIVILEGE OBJECTIONS To the extent Epsteins affidavit is an effort to recede from his assertion of privilege it comes far too late The question of withdrawing privilege objections arises often but not exclusively in the context of the Fifth Amendment privilege against self-incrimination The applicable law has been summarized in the Criminal Practice Manual Generally a litigant may not assert the privilege and then seek to withdraw it in order to gain a tactical advantage The Fifth Amendment Withdrawal Crim Prac Manual collecting cases The best known and most cited case on point is United States Certain Real Property and Premises Known as 5th Ave Brooklyn 3d 2d Cir The See also Cahaly Benistar Prop Exch Trust Co Inc I WL IO Mass Super Ct I striking affidavit submitted after assertion of spousal privilege Vaughn Michelin Tire Corp S.W 2d Mo Ct App Holstein concurring approving exclusion of evidence in light of defendants invocation of trade secret privilege during discovery EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld government therein followed a drug conviction with a civil forfeiture action against property owned by the defendant The defendant Tapia-Ortiz asse1ied his Fifth Amendment privilege in refusing to answer interrogatories about drug dealing activities Six months later the government moved for summary judgment asserting that the property was used for drug deals and pointing out the defendant had refused to provide any information on that topic The defendant responded that he would like to withdraw his privilege objections and revise his interrogatory answers See F.3d at The district court refused the defendants request to withdraw his privilege objections ruled that the defendant could not submit any materials in opposition to the motion for summary judgment that he had previously claimed to be privileged and entered summary judgment for the government Id On appeal the defendant conceded that absent his withdrawal of privilege of submission of an affidavit he had no evidence to defeat the summary judgment motion Consequently the only issue we face on this appeal is whether the District Court effed when it prevented Tapia-Ortiz from opposing the Governments motion for summary judgment with affidavits involving matters previously claimed to be within his Fifth Amendment privilege Id at The Second Circuit Court of Appeals began by discussing a litigants right to invoke privilege the substantial problems that privilege claims can pose for the adverse partys search for truth and a trial courts need to strike a balance that accommodates both parties interests Id at The comi then directly addressed the issue of withdrawal EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld In some instances however a litigant in a civil proceeding who has invoked the Fifth Amendment may not seek any accommodation from the district court and may instead simply ask to withdraw the privilege and testify In other cases a litigant may ask to give up the privilege rather than accept the accommodation that the court has offered The district court should in general take a liberal view towards such applications for withdrawal of the privilege allows adjudication based on consideration of all the material facts to occur The court should be especially inclined to permit withdrawal of the privilege if there are no grounds for believing that opposing parties suffered undue prejudice from a litigants later regretted decision to invoke the Fifth Amendment This does not mean that withdrawal of the claim of privilege should be pennitted carelessly Courts need to pay particular attention to how and when the privilege was originally invoked Since an assertion of the Fifth Amendment is an effective way to hinder discovery and provides a convenient method for obstructing a proceeding trial courts must be especially alert to the danger that the litigant might have invoked the privilege primarily to abuse manipulate or gain an unfair strategic advantage over opposing parties If it appears that a litigant has sought to use the Fifth Amendment to abuse or obstruct the discovery process trial courts to prevent prejudice to opposing parties may adopt remedial procedures or impose sanctions See Wehling Columbia Broadcasting System F.2d 5th Cir stressing that courts must be free to fashion whatever remedy is required to prevent unfairness In such circumstances particularly if the litigants request to waive comes only at the eleventh hour and appears to be part of a manipulative cat-and-mouse approach to the litigation a trial court may be fully entitled for example to bar a litigant from testifying later about matters previously hidden from discovery through an invocation of the privilege As courts and commentators have noted opposing parties will frequently suffer prejudice at the very least from increased costs and delays when a litigant relies on the Fifth Amendment during discovery and then decides to waive the privilege much later in the proceeding 5th Ave F.3d at other citations omitted emphasis added Applying these principles the Second Circuit held that the district court did not abuse its discretion in refusing the defendants attempt to belatedly waive the privilege The EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld defendant had persisted in his privilege objections for six months changing his position only after the government had moved for summary judgment On these facts the District Court was entitled to conclude that Tapia-Ortiz ought not to be allowed to block the Governments action through such means and especially ought not without sanctions to be allowed to use the Fifth Amendment to further his obstructionist purposes Id at Less than two weeks after 5th Avenue was decided the Southern District of New York entered a similar order in SEC Grossman Supp S.D.N.Y addressing a circumstance nearly identical to that presented by EPSTEINS current effort to support his summary judgment motion with his own affidavit The order of the Grossman Comi prevented the defendants the Hirschbergs from offering exculpatory evidence in opposition to a summary judgment motion which evidence they had previously refused to disclose during discovery The Hirschbergs decided not to provide discovery to the Commission choosing to let stand their prior refusal to provide information based on their Fifth Amendment privilege against self-incrimination Having done so the Hirschbergs cannot now complain that they are precluded from offering evidence on the very issues for which they have declined to provide discovery for several years Supp at The comi noted that during those several years the burden lay with the defendants to come forward if they wished to change their position on privilege Id see also SEC Zimmerman Supp N.D Ga By waiting the defendant has made his decision EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld The trial courts decision in Grossman was affirmed on appeal under the name SEC Hirshberg F.3d Table WL 2d Cir The Second Circuit held that the Hirschbergs had engaged in precisely the type of eleventh hour and manipulative cat-and mouse approach to the use of privilege that we warned in 5th Ave would justify a district comis decision to preclude testimony with respect to matters shielded from discovery through the asse1iion of the privilege WL The court turned to the question of prejudice focusing on the tactical advantage that would be gained by the defense Moreover on the circumstances of this case we believe that the SEC would have suffered prejudice had the District Court considered the defendants submissions Alan Hirshberg having waited four years to respond to the SECs motion could simply tailor his affidavit to create an issue of fact requiring a trial Id at In United States Private Sanitation Industry Assoc ofNassau/Si1ffolk Inc Supp E.D.N.Y the court cited 5th Avenue when rejecting a defendants effort to withdraw his privilege objection and submit testimony in opposition to a motion for summary judgment Mr Ferrantes attempt to testify comes after more than two years of repeatedly invoking his Fifth Amendment rights in response to lengthy deposition questions posed to him by the government His repeated assertion of the Fifth Amendment has greatly extended this litigation and has undoubtedly given him a strategic advantage over his opposing paiiy Supp at EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld In SEC Softpoint Inc Supp S.D.N.Y the SEC simultaneously filed a motion for summary judgment and a motion to preclude the defendant from introducing any evidence that he previously withheld on a claim of privilege made six months earlier The court granted the preclusion order holding that a defendant may not invoke privilege to impede discovery efforts and then seek to wave the privilege when faced with the consequences of his decision Id at By asserting and waiving the privilege when convenient defendant has engaged in the type of conduct that the Second Circuit described as a manipulative cat and mouse approach to the litigation the type of conduct that warrants ban-ing a defendants testimony in opposition to summary judgment Id In finding actual prejudice to the SEC the court noted that the defendants tactics would delay the resolution of this litigation put the SEC to enom1ous and unnecessary expense and provide him an unfair strategic advantage in this litigation allowing him to effectively ambush the SEC with evidence defenses and denials that he concealed until after the governn1ent moved for summary judgment Id The Second Circuit concluded for substantially the same reasons set forth in the district courts thoughtful opinion and order that defendants affidavit was properly precluded and that in the absence of this affidavit The defendant relied upon SEC Graystone Nash Inc F.3d 3d Cir in which the appellate court reversed a preclusion order that flowed from the assertion of privilege during deposition The district court in Soflpoint distinguished Graystone Nash on two key grounds First the defendants in Graystone Nash appeared prose and were not presumed to know the consequences of asserting privilege Second the Graystone Nash court found an inadequate showing of prejudice to the SEC unlike the clear showing of prejudice in Sojipoint See Supp at see also Christopher Blum Self-Incrimination Preclusion Practical Effect and Prejudice to Plaint ffs The Faulty Vision of SEC Graystone Nash Inc Brook Rev Spring EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld summary judgment was appropriately entered for the SEC F.3d Table WL 2d Cir citation omitted SEC Merrill Scott Assocs Ltd Supp 2d Utah provides one of the most thoughtful analyses of the prejudice inherent in a long-delayed waiver of privilege The defendant therein Mr Brody invoked privilege in refusing for three years to answer deposition questions but then sought to waive the privilege and offer an affidavit in opposition to a motion for summary judgment The court held that although the defendant properly invoked his Fifth Amendment privilege three years earlier the timing and context within which Mr Brody waived his privilege is troubling Mr Brody did not submit his sworn testimony until approximately one year after the period for fact discovery had concluded More importantly he waived the privilege after the SEC had moved for summary judgment and consequently had an opportunity to tailor his response to the motion Supp 2d at emphasis added The court specifically noted that the defendants offer to submit to another deposition is not sufficient to remedy the problems created by his eleventh hour waiver id at as the SEC would face having to completely reopen its case in light of the new deposition testimony This case has been pending for over five years SEC has taken over seventy depositions throughout the United States and Canada The SEC no doubt incuned significant costs and expenses in connection with that discovery Indeed arguably the SEC took more depositions as a result of Mr Brodys refusal to testify in But SEC took many of the depositions without the benefit of Mr Brodys version of events While the SEC developed its own case it did not have the opportunity to rebut Mr Brodys newly presented case It certainly would be prejudicial to the EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld SEC to allow Mr Brody to testify at trial without first being deposed And it would be prejudicial to require SEC to rely on discovery that was developed without the benefit of knowing Mr Brodys assertions To allow SEC the opportunity to rebut Mr Brodys case through additional discovery would not only open a Pandoras box but would result in substantial additional costs and delay Supp 2d at Because Mr Brody waited over three years from the date of his deposition to waive the privilege and offer evidence in his defense never previously indicated that he intended to waive the privilege and allowed the SEC to build its case based upon his refusal to testify the court struck his response in order to avoid prejudice to the SEC Supp 2d at The court wrote that ther courts have done the same in similar circumstances then described the holdings in 5th Avenue and six other published decisions Id at In another published decision on preclusion SEC Brown Supp 2d Minn the court addressed a slightly different factual setting In Brown the defendant had provided broad interrogatory responses but thereafter invoked his Fifth Amendment privilege thus preventing the SEC from exploring his answers in deposition Supp 2d at The court held that in order to prevent unfairness to the SEC the defendant could not rely on his interrogatory responses in opposing the SECs motion for summary judgment The comi cited a number of cases analyzing the consequences of privilege assertions in civil cases including SEC Benson Supp S.D.N.Y defendant prevented from offering evidence in support of positions on which he had invoked the Fifth Amendment and In re Edmond EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld F.2d 4th Cir approving the striking of a self-serving affidavit where a party had invoked privilege to prevent a deposition FLORIDA LAW THE BINGER TEST There is no Florida authority directly addressing the consequences of raising and then belatedly attempting to waive a claim of privilege But in Binger King Pest Control So 2d Fla and its progeny Florida courts have similarly focused on prejudice and fairness when considering the appropriate sanction for violation of a pretrial order In Binger the plaintiff attempted to call an expert witness to testify at trial who had not been identified on a comi-ordered witness list The trial comi pe1mitted the expert witness to testify but the Fourth District Court of Appeal reversed The Florida Supreme Court approving the district court decision wrote A trial court can properly exclude the testimony of a witness whose name has not been disclosed in accordance with a pretrial order The discretion to do so must not be exercised blindly however and should be guided largely by a dete1mination as to whether use of the undisclosed witness will prejudice the objecting party Prejudice in this sense refers to the surprise in fact of the objecting paiiy and it is not dependent on the adverse nature of the testimony Other factors which may enter into the trial courts exercise of discretion are i the objecting partys ability to cure the prejudice or similai his independent knowledge of the existence of the witness ii the calling partys possible intentional or bad faith noncompliance with the pretrial order and i the possible disruption of the orderly and efficient trial of the case or other cases If after considering these factors and any others that are relevant the trial court concludes that use of the undisclosed witness will The trial court in Edmond_referred to the defendants maneuvering as trying to have peanut butter on both sides of his bread So 2d at Although such a statement is somewhat simplistic it properly and succinctly explains the rationale for striking the affidavit Cahaly Benistar Prop Exch Trust Co Inc I WL IO Mass Super Ct EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld not substantially endanger the fairness of the proceeding the pretrial order mandating disclosure should be modified and the witness should be allowed to testify So 2d at footnotes omitted Many subsequent decisions have applied these so-called Binger factors to avoid trial by ambush For example in HSBC Bank Mortg USA Lees So.3d Fla 4th DCA the Fourth District affirmed a trial court judges decision to strike a key witness whose existence had been disclosed by the defendant bank only shortly before trial The Fourth District recounted Binger admonition that the primary factor to consider in such circumstances is whether use of the undisclosed witness will prejudice the objecting party Id at The Fourth District concluded that the banks failure to disclose its witnesses in a manner that was in compliance with the pre-trial order constituted surprise in fact and thus under the facts of this case prejudiced the homeowner Id at Similarly in Cascanet Allen So.3d Fla 5th DCA the appellate court found it was error to allow a defense expert witness to offer a new theory that minimizing the plaintiffs injury to his leg a theory not disclosed in the experts report The Comi explained that the plaintiffs attorney could not have been prepared to rebut or effectively cross-examine the doctor on his new theory for the leg pain or to attack the many studies purportedly supporting the doctors opinion In Metropolitan Dade County Sperling So 2d Fla 3d DCA the appellate court cited Binger in affirming the exclusion of an expert witness who was disclosed 遬Q?T S0Y m?,F o?E Wq q??H ņ!dO 햢C??C S?dxS?J S?k b?M x?d tז?0w 뎡DZ?X?U??R M?ON?Ώ?x??h?U??ʹ j?ӓ?9T gxߐ s??t qtx?N?o;4 8?ȽY Q3 M?E?T,?q?U V1K?r?a s?c fwS?Ď I Vk?r Ep 2f zK bs Y?n NKUo?x?GD C??f p?yH8 r?WsR Fcn?v Ќ??Ȧ լn cg u?f J!q TPjr 6z JD??:??jIg qUVs En?Մ?J Aɫg vÑ??k W?Wh?V?_ N??s et eP ov J?FR?L Wl N?OM v??s?b eeG??y zFf?3ir VKh?ۄ sh0Nh Ґ??Ճ 0?bnXqGP hy Q?V?8h Ą?Է?UK?9 a??f?w:?l?Ŧ?BuV??Oa?O PB?L G6??rU?;E?vE bc?6 dDv??b?6 Ƞ?B??X s7nn v?Ի mԒ_2a1_Ʀ?H R?J n?k ڕe?q 1q i?ا?gY8 ǡs aqY?k?2vܮ E?Ȩ kVթ?c?I I EA?q?y 2s?X7U j9dW Ĉ?b?斍?w i?kN H6 ZU?j h?O B?U??m?Q bU?Ha D5I oL?1p?P?AG A c?F 6B ʄ?(P3J e?v9 Q?ߍ 3H K?s??f ӄ??sdBm p-ח??k Q_c?N h?o I0 B??bI A?N OK B?h 7?ݺu EM G?vc yO?y I?c v?N?ñ uu?M?G?f c?z sb ct?c?_b?a pKsZ S?GP i?6p?ġ E?Z 2m hq a 4y?f I yH?I?p PD kevq slm??"?q q??Τx sB Z7?h?M Ñ?r Y?u0 oV?:b?u nQ M?J pN?g 뎢b A hj A"r hT??Y WC i g?i f?L D?P u?h?t 7Y Z?H3ŀ??IX??n Ey?R W2 A MZԚ ꓔ.?f qO Oc Z?YA??!X?Q Qs uO?2 wd D?Z ƚD q?1i a A??m?yˆ q?D?p?B?bV?x A OQ?BlH a ԡu g?EŤ?JR P?NSq yî U?o m?Y Suy?p 6B f?T Q?r u?pɅe0YW S:?i Ӂ?Rp_ S?h H??L u?m?gs ieL I??Re t??"jȸ d?K nf e!?m im??S oe?o T?DU sLLJ I QZ q?P e4?L G?r 4?ɐ?sav dEp gk CHU R?y??M z_ u?ӼX m?E W1 I vO Oh 1m?oa I?avx Υ?V d??Jq е/b?"h A j۲ Kl Nx A;BA Į?v?T d?z?D z?-s s?v 㸞8 FN t߃??hx GUڃ3 Vs ǽn?b4 _l XR axnˬ Xx?O9?S q?l?H aO l6g_O aBX U?ա rX?Wn ƻ7 I S?DS9N r??FDV?9?g n?VF?3 R??S qs?Ģ kФQ l?B G2Q _w?Po p?f IBf ȆE Sg?0 fdݤG?J4 Bu ddx bzĪs퇜 z?8i?Q s?M xJ?1 i?E wp Om a U4?V ɞP M8 _?B?kc Qo2 I R9u i S3?g v??t 5l SwBN P8 0n?FA R?Du?ϡIy?n Kh IR ddU wޡ E瑋 CM/?9u z?d vm2 J?H LE?5 _XF Ŝ3 P?y??s?9qOE jS G88BO v??WLT?u o?K?yr abF oU?O k??n?p aH kw1ԩ nmB 9O?W Kh K?q r??lN?K C??H?l??t?Ps i bd o?bt w?ݚ F?ŝ?t a zr?z i Sb bR?eY IB??ȫ qT?iLp I?e?Q qCp?.kz??p ZG?_duv?0?t?t Y?J Ց?)?MS Z?sδ?C P?c?S??l?v?L 5t LM M?Gu?XU?G W?ժ v0?go X??۲ڶ?Jv ro:u??Q T?Vk lp.I?_w??I 0H?t Qd N?z?Q 柫6 T??k L?x axq?ll Dy J?j?KV1?h U??Ob na?b?s ŵK?!?U?F?A?EU9W i l?b l):KV L??o 0B?CX?B l?b6?H P𧰿 Yb H;?e b?s?SS U9 Etf?rM6s??g??Q6?Y?W DWo jR h?ij?f?t??L?Tb SYw d?Q c?/Z sS p?w 6J yD?UݍG o??W?z n?Yf QCHW_?DY p?E וֹo g?D ye qxLj4 J??W rY?x Ā?;o SMcM rg?E ne yi F?g t?ƒJ La??e K?Pg?0?n G-?X Y4 ms oD 0s?U Ju Hpա7 EE G?K H溾?J F?W??P Jq Tc(?y CGa l?I?(x g?mh?j?ʿ y??c ȋk g?e W?benDv?uN ur S?n hJwğ6 z?lY ؤk??C Vz cE?oI/1x _m SK?6 MAH KE??K E??qa??sI VA1 Aд?M?3 G??T oяs p?pj?aM o?v??O GVꎄ g?J ݟwʼ 9Y O?E?u rY LM9 Y?tm Dg Qh c3 A I x?/j t?FZ vC 3?Yj4JI8 VP RҲ I 2Wʵ5??PpD X?V sVa??n Lk A??wЅ e?Ø t?qjm aE??k R2 X?O BK?_a?e?N Oх۱ I?D?6ʬ A da?s Jq 唶?k R?O??p ѯ?u ƌ?m NOԅ 3D??bX sq Y?P?u Q?cM i??S OM6 T??r V??o EK Y?S_ R??jv Y?8?f?H?_PFr a e?E?Cη b??TŐ-B db EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld before trial but days after the court-ordered deadline for listing witnesses The court specifically rejected the argument that any prejudice could be cured by deposing the expert before trial Although a deposition might have been possible defendants counsel would not have had adequate time to prepare See Gustafson Jensen So 2d Fla 3d DCA While a hastily scheduled deposing of the husbands surprise expert may have been possible the time frame for assimilation and analyzation of refuting testimony and documents was too highly compressed to allow the wife a fair presentation In Florida Marine Ente1prises Bailey So 2d Fla 4th DCA the Fourth District Court of Appeal applied Binger in affirming the trial courts decision to strike an expert witness who was untimely listed The trial judges chief concern was to afford the parties an opportunity for the fair orderly and efficient preparation and trial of the lawsuit So 2d at The appellants argued that a continuance of the trial obviated any prejudice but the Fourth District made clear that a trial delay is itself prejudicial Where as here a party without good cause improperly discloses witnesses and by virtue of the improper disclosure gains an unfair advantage over the opposing party who is in compliance with the pretrial order Binger gives the trial court discretion to strike those witnesses to prevent the objecting party from being forced to choose between frantic last-minute discovery and an unjustified delay of her trial This is not a fair manner in which to cure the prejudice caused by the defendants failure to timely prepare their case and we hold that Binger does not require such a result here In the instant case the trial court properly found that unfair prejudice to Plaintiff existed because she would be unable to counter testimony offered so late in the EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld game See Grau Branham So.2d Fla 4th DCA Neither side should be required to engage in frantic discovery to avoid being prejudiced by the intentional tactics of the other party Binger does not mean that trial courts are obligated to automatically grant last minute continuances to parties who choose not to timely prepare their cases for trial The trial courts discretion under Binger includes the power to appropriately enforce pretrial orders as the court below did in this case So 2d at In Menard University Radiation Oncology Associates LLP So 2d Fla 4th DCA the Fourth District Court of Appeal reversed a trial court decision to allow a party to change the position that it had taken throughout discovery regarding basic factual issues In so doing the court revisited and reaffirmed the notions of fundamental fairness upon which the Binger line of cases is based The court reviewed in detail three of its post-Binger decisions Department of Health and Rehabilitative Servs JB So 2d Fla 4th DCA Grau Branham So 2d Fla 4th DCA and Office Depot Inc Miller So.2d Fla 4th DCA JB Grau and Qffice Depot all stand for the proposition that it is an abuse of discretion to allow a party at trial to change in this mam1er the substance of testimony given in pretrial discovery So 2d at In discussing Office Depot the Fourth District quoted Judge Ansteads closing observation that the trial court decision to exclude testimony sends out a strong message to those who do not adhere to the code of fair play advanced by Binger then added Our warning issued more than years ago has never been withdrawn Id at The EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld court also noted that our holding is in the nature of an estoppel which in fact is the real principle underlying the holdings in JB Grau and Office Depot So 2d at ANALYSIS PREJUDICE FAIRNESS AND ESTOPPEL Both the federal cases regarding the consequences of invoking privilege and the Florida cases regarding violation of pretrial orders turn on considerations of prejudice fairness and reliance upon an existing set of circumstances Applying these fundamental principles to the instant case it is clear that EDWARDS would suffer extreme and incurable prejudice if EPSTEIN were permitted to selectively withdraw his privilege assertions and support a defense to the pending claim against him with a self-serving affidavit or any other evidence as to which relevant and material discovery has been foreclosed by his consistent assertion of the privilege against self-incrimination Among other reasons EDWARDS would obviously be prejudiced as a result of his inability to challenge or even explore the claims that EPSTEIN seeks to advance at the 11th hour to support his dispositive motion CONCLUSION EPSTEIN made a conscious decision to adopt and adhere to a hard-line position on privilege for eight years EPSTEIN bet on Counter-Plaintiffs inability to carry his burden of proof past the roadblock of his many privilege objections EPSTEINS need to rely on his own affidavit in an effort to support his motion for summary judgment makes clear that EPSTEIN is EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld about to lose his bet Faced with the near certainty of an adverse finding on liability EPSTEIN wants to take a Mulligan and begin the case over with full knowledge ofEDW ARDS litigation strategy However the advantages EPSTEIN would gain by permitting such a reversal at this stage of the proceedings and the disadvantages that EDWARDS would suffer in the lengthy delays and enormous added expenditures of effort and money inherent in a do-over create a kind and degree of prejudice for which there is no practical cure In the words of the Second Circuit this case has reached its eleventh hour and EPSTEIN is attempting to play cat and mouse with the privilege 5th Ave F.3d at This Court has every right and a clear obligation to reject EPSTEINS ploy WHEREFORE EDWARDS asks that this Court grant its motion in limine strike Epsteins affidavit preclude EPSTEIN from using any documents testimony or other evidence previously withheld on the basis of privilege and grant such further relief as may be just EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve to all Counsel on the attached list this of Atto ey Mail jsx searcylaw.com and mm searcylaw.com Pri ry E-Mail _scarolateam searcylaw.com Searcy Denney Scarola Barnhart Shipley P.A Palm Beach Lakes Boulevard West Palm Beach Florida Phone Fax Attorneys for Counter-Plaintiff BRADLEY EDWARDS EDWARDS ADV EPSTEIN Case No Edwards Motion in Limine to Strike the June Affidavit and to Preclude Evidence As to Which Discovery Was Withheld COUNSEL LIST William Chester Brewer Esquire wcblaw aol.com wcblawasst gmail.com Australian A venue Suite West Palm Beach FL Phone Fax Attorneys for Jeffrey Epstein Jack A Goldberger Esquire jgoldberger agwpa.com smahoney agwpa.com Atterbury Goldberger Weiss P.A Australian Avenue Suite West Palm Beach FL Phone Fax Attorneys for Jeffrey Epstein Bradley Edwards Esquire staff.efile pathtojustice.com Farmer Jaffe Weissing Edwards Fistos Lehrman Andrews Avenue Suite Fort Lauderdale FL Phone Fax Fred Haddad Esquire Dee FredHaddadLaw.com Fred FredHaddadLaw.com Fred Haddad P.A One Financial Plaza Suite Fo1i Lauderdale FL Phone Fax Attorneys for Jeffrey Epstein Tonja Haddad Coleman Esquire tonja tonjahaddad.com efiling tonjahaddad.com Tonja Haddad P.A SE 7th Street Suite Fo1i Lauderdale FL Phone Fax Attorneys for Jeffrey Epstein Marc Nurik Esquire marc nuriklaw.com One Broward Blvd Suite Fort Lauderdale FL Phone Fax Attorneys for Scott Rothstein 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 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