EFTA01082634.pdf

Page 1 Page 3 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN 1 APPEARANCES: AND FOR PALM BEACH COUNTY, FLORIDA 2 3 On behalf of the Plaintiffs: CASE NO. 502008CAO2S051X300IMB AB 4 BRADLEY J. EDWARDS, ESQUIRE FARMER, JAFFE, WEISSING, EDWARDS L.M., 5 FISTOS & LEHRMAN, P.L. Plaintiff, 425 North Andrews Avenue -vs_ 6 Suite 2 JEFFREY EPSTEIN, Fort La ' a 33301 Defendrat. 7 Phone: 8 9 HEARING BEFORE ME HONORABLE On behalf of the Defendants: DONALD HAFELE 10 MICHAEL L PIKE, ESQUIRE 11 BURMAN, CRITION, LOTTER & COLEMAN, LLP PLAINTIFFS MOTION TO COMPEL RESPONSES TO FIRST 303 Banyan Boulevard REQUEST TO PRODUCE 12 Suite 400 West P rids 33401 13 Phone: Tuesday, May 25, 2010 14 Palm Beach County Courthouse 15 West Palm Beach, Florida 33401 16 8:38.9:14 a.m. 17 18 Reported By: 19 Cynthia Hopkins, RPR, FPR 20 Notary Public. State ofFlorida 21 Prose Court Reporting 22 Job No.: 2219 23 24 25 Page 2 Page 4 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL 1 PROCEEDINGS CIRCUIT IN AND FOR PALM BEACH COUNTY,FLORIDA 2 CASE NO scaooscAomossmoacma AB 2 3 3 THE COURT: L.M. versus Epstein. Okay. E.W 4 4 It's the Plaintiffs Motion to Compel and it Plaintiff, 5 reflects two items that are being requested or S 6 -vs- 6 two groups of items that are being requested. 7 JEFF 7 Mr. Edwards? ANDS'S., 8 MR. EDWARDS: Yes, Your, Honor, just so B 9 10 11 Defendants. 9 LO _1 the record is clear, this is also meant to be set in E.W., an identical request, identical motion similar to the way that we have handled I 12 HEARING BEFORE THE HONORABLE _2 them in previous hearings. DONALD HAFELE 13 -3 THE WITNESS: Do you have any objection, 14 4 Mr. Pike, to handling both at the same time? 15 PLAINTIFFS* MOTION TO COMPEL. RESPONSES TO FIRST .5 MR. PIKE: No, Your Honor, the application REQUEST TO PRODUCE 16 would be the same for both. 17 ,7 THE COURT: All right. Thank you. 18 Tuesday, May 25.2010 Palm Beach County Courthouse L8 MR. EDWARDS: Your Honor, for the most 19 West Palm Beach, Florida 33401 .9 part, lam going to rest on our motion. As 8:38 - 9:14 a.m. 20 20 Your Honor is well aware based on previous 21 21 discussions, this issue, identical requests 22 Reported By: Cynthia Hopkins, FOR, FPR 22 have been fully briefed to the federal court. 23 Noisy Public., State of Florida 23 There has been a ruling and a federal court Prose Court Reporting 24 order that is very well reasoned and very 24 Job No.: 2219 25 25 detailed. asana•a•ax-.... vv. • 1 (Pages 1 to 4) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthla hooking (601.051.976.2934) 61190043-6636-47e1-a2dd-d6f2305779ff EFTA01082634  Page 5 Page 7 And Mx. Pike and his firm have taken that 1 to the State or to the U.S. Attorney, the State 2 issue up on appeal after these particular 2 Attorney or the U.S. Attorney. 3 requests were granted in that stage. 3 MR. EDWARDS: Well, we have by way of a 4 But the points that I would like to make 4 FOIA request requested the State Attorney's 5 are we are simply asking for — let me back up. 5 file. They gave us some information. We have 0 We have at this point in time received no 6 learned, and I am not really sure how that 7 discovery in terms of production, in terms of a 7 process works, whether it gets taken to an 3 single document, in terms of any information, 8 office and everything is copied and sent out, 9 in terms of anything other than a blanket Fifth 9 but then have been certain documents that we 10 Amendment assertion. And while we have all 10 received that other attorneys who have done a 11 been educated on the Fifth Amendment during 11 similar FOIA request received a couple more 12 this case and understand that it is available 12 documents or a couple less documents. 13 in a broader sense than I had obviously 13 And similar to the U.S. Attorney's office, 14 originally believed, it doesn't work in the way 14 we have not done the FOIA request to them 15 that it is trying to be used right now. 15 although because there is a specific procedure 16 In fact, it seems that it is applicable 16 for getting things in the possession of the 17 when it is not only going to immediately 17 FBI, we have requested it by way of motion. 18 incriminate Mr. Epstein or whomever is 18 We're going through that process but that 19 invoking, but also when it provides a link in 19 process is a lengthy process. 20 the chain to prosecution. 20 This is a much simpler process and at this 21 So, these particular requests are asking 21 point in time we would know what Epstein has 22 for documents that were already in the 22 related to our client, what he has related to 23 possession of the government. So therefore, 23 other clients, that would provide similar fact 24 the existence of those documents is a foregone 24 evidence and generally what was given to him 25 conclusion to use the term of art normally 25 and certainly information that were entitled Page 6 Page 8 1 discussed in the case law that is applicable to 1 W. 2 to this issue. 2 THE COURT: Thank you. 3 And if the government has already had 3 MR. PIKE: Your Honor, may I approach? 4 these documents in its possession and has 4 THE COURT: Yes. 5 provided it to Epstein, then it could not 5 MR. PIKE: There are a couple ofrules 6 possibly form a link in the chain to 6 that I provided counsel that Your Honor needs 7 prosecution. It's not something that the 7 to take into consideration, 90.408 and 90.410 8 government does not already know about. And 8 and the corresponding Rules ofEvidence 408 and 9 that is where we have decided, hey, you know 9 410 and as well Federal Rule of Evidence 502-D 10 what, if we can't get any other information, 10 which deals with information that is 11 there is certain information that we're 11 interchanged between criminal lawyers, the 12 definitely entitled to, and that would be all 12 defendant, and the state or federal government 13 the information that has already been in the 13 during plea negotiations. 14 government's hands and provided to Epstein. 14 THE COURT: Well, it's interesting because 15 And so were asking Epstein just for that 15 I thought about that last night, but I didn't 16 information that the government already had 16 see argument in any papers that you filed. 17 within its grasp. 17 MR. PIKE: That's right, Your Honor, it 18 And for the remainder of the argument I 18 was not referenced in the papers but on the 19 think it's fairly detailed in the analysis and 19 appellate side which we discussed prior to the 20 the conclusion. I will rest on the written 20 court reporter showing up, it has been 21 motions. 21 discussed and fully briefed. And I wanted to 22 THE COURT: Okay. Let me just ask a 22 bring Your Honor's attention to it today at 23 question that the Defense has raised and that 23 today's special set hearing. Mr. Edwards has 24 is, why have you not subpoenaed or if you have 24 obviously a copy of that appeal. 25 what have been the fruits of documents directia_____MR. EDWARDS: I was given that informatio 2 (Pages 5 to 8) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601-051-976-2934) 61190aa3-6638-47c1-a2dd-d6f2305779ff EFTA01082635  Page 9 Page 11 1 this morning related to these particular rules, 1 Epstein's counsel relative to the 2 so I do have them. 2 nonprosecution agreement, and therefore to the 3 MR. PIKE: Your Honor, if you would 3 extent that Your Honor orders any of this 4 provide me with some leeway to clear up some 4 information be produced, similar to the federal 5 matters, some housekeeping matters first before 5 court relief requested, we ask that an 6 I get into the bulk of my argument would be a 6 in-camera hearing be held to review this 7 appreciated. 7 information to determine what attorney work 8 THE COURT: Sure. 8 product and mental impressions should be 9 MR. PIKE: As a prelude, Your Honor, 9 redacted from that information consistent with 10 Plaintiff seeks all the information exchanged 10 Federal Rule of Evidence 502-D which is a 11 between Jeffrey Epstein's attorneys, the USAO, 11 selected waiver provision and does not apply 12 the State Attorney, and the local state and 12 the far broader waiver provisions when 13 federal government. 13 discussing plea negotiations. 14 What's important here is that we all 14 So those are some things that Your Honor, 15 understand that there are corresponding and 15 we respectfully request that Your Honor take 16 companion cases and therefore discovery needs 16 into consideration. 17 to be consistent. In the federal court cases 17 Secondly, Your Honor, as to the State 18 and to the extent I understand the request. at 18 Attorney's file as set forth in my motion, Jack 19 issue here today, we have responded that 19 Goldberger, who as Your Honor knows is 20 Jeffrey Epstein has no, quote, discovery 20 Mr. Epstein's criminal lawyer, went to the 21 information provided to him by the federal 21 State Attorney's office and hand selected 22 government. And I had told Mr. Edwards that 22 various documents. 23 not only in person, not only by motion, but 23 The State Attorney's office as set forth 24 also by letter. All right. So Mr. Edwards 24 in Mr. Goldberger's affidavit did not produce 25 understands that. 25 any information to Mr. Goldberger. He went to Page 10 Page 12 Secondly we have responded in federal 1 their file and hand selected that. So any 2 court motions that Epstein had not been given 2 information that he hand selected would be 3 any, quote, evidentiary materials or 3 protected pursuant to the work-product 4 evidentiary documents by the federal 4 privilege. 5 government. So, to the extent that handles any 5 THE COURT: I am not sure l saw 6 portion of these requests, Mr. Edwards is on 6 Mr. Goldbergefs affidavit in the papers that 7 notice in that regard. 7 you provided. Do you have an extra copy? 8 The other issue that we're dealing with is 8 MR. PIKE: Yes, it's attached there, Your 9 these requests are far broader, the ambit of 9 Honor. 10 the requests implicate whether or not the 10 THE COURT: Is it attached to the same 11 Plaintiff is seeking just communications 11 documents where the order was attached? 12 provided by the United States Attorney's office 12 MR. PIKE: Yes, Your Honor. 13 to Epstein's counsel or all of Epstein's 13 THE COURT: The federal government's 14 counsel's communications with, for example, the 14 order? 15 USAO the State Attorney's office or any other 15 MR. PIKE: No, it's attached as Exhibit E 16 local, state, or federal law enforcement 16 to our responsive motion. 17 agency. 17 THE COURT: It's the same group of 18 And as Your Honor knows, if Jane Doe, if 18 documents. I do have it. Thank you. 19 L.M. and E.W. seek all communications, it 19 MR. PIKE: That would be correct. Okay. 20 implicates the work product of Epstein's 20 As Your Honor knows, Federal Rule of Evidence 21 lawyers. And if the Plaintiffs seek just the 21 408, 410, and 502 all deal specifically with 22 communications provided by the USAO or the 22 plea negotiations and the policy, and the 23 State Attorney, it deeply implicates the work 23 critical public policy of encouraging 24 product of the USAO and the State Attorney when 24 resolution of criminal prosecutions without 25 theza!ere negotiating and communicttin with 25 trial and with the understanding that 3 (Pages 9 to 12) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkIrss (601.0614714934) 51190.a3-6636-47c1-a2dd4612305779ff EFTA01082636  Page 13 Page 15 1 Defendants will be considerably more likely to 1 interaction with Mr. Epstein at his house, I am 2 engage in full and frank discussions with the 2 specifically reading from Page 41 related to 3 government if they fear that statements they 3 A.H. who is one of the victims he pled guilty 4 and their counsel make to the government will 4 to. 5 be used against them to their detriment. 5 Mr. Pike: Is that the same document that 6 The policies underlying that critical 6 you're seeking production of in the exact same 7 issue and the rules are Federal Rules of 7 case? 8 Evidence, 408 and 410 and 502. 8 Mr. Edwards: 1 don't know what you're 9 Even more importantly, Your Honor, is 9 talking about. This is something from the 10 Federal Rule of Evidence 502, and obviously 10 State Attorneys file. I 11 Florida Rules ofEvidence, Florida Rule of 11 Next, at the deposition of A.Ft. on 12 Evidence counterpart 90.502, 408 and 410. 12 March 15th, 2010, the following exchange 13 With regard to 502, Your Honor, there is a 13 occurred: Mr. Edwards, well, at some point in 14 strong public policy in favor of 14 time what has been marked as Defense Exhibit I, 15 confidentiality and plea negotiations. The 15 you received a grand jury investigation target 16 disclosure of such information should be 16 letter, correct? There is another message from 17 treated as falling within the selected waiver 17 September 11, 2005, saying I got a car for, and 18 provisions of Federal Rule of Evidence 502 and 18 then the name is blotted out. The State 19 not be treated as an open-ended waiver of the 19 Attorney's office blotted out the names of 20 attorney-client, work-product privileges. 20 minors sometimes in their file. 21 And if the discovery order is entered, we 21 It is clear, Your Honor, that Mr. Edwards 22 would request that an order also be entered 22 has the State Attorney's file. He has the Palm 23 pursuant to Florida Rule ofEvidence 502-D 23 Beach Police Incident Report. He can get the 24 mandating that the communications that led to 24 Information because he has received the 25 the execution of the non-prosecution agreement 25 information from other sources. Page 14 Page 16 1 and the communications regarding its 1 In fact, Mr. Kuvin at Detective Recarey's 2 implementation should be to the extent they 2 deposition who is obviously a detective for the 3 have upon any work-product not disclosed to any 3 Palm Beach Police Department, the following 4 third party. 4 exchange occurred at that deposition: 5 As Federal Rule of Evidence provides, a 5 Mr. Kuvin: Okay. And what were the dates 6 federal court may order that the privilege or 6 of the surveillance? 7 protection is not waived by disclosure 7 Witness: It appears she met with members 8 connected with the litigation pending before 8 ofthe B.S.F., the Burglary Strike Force Unit. 9 the court in which event disclosure is also not 9 Mr. Kuvin: If we go down to Page 40 in 10 a waiver in any other federal or state 10 your report — first let me back up. Okay. 11 proceeding. 11 So, the chain ofcustody which we have marked 12 I think Your Honor asked Mr. Edwards a 12 as Exhibit 5 shows that all the evidence you 13 very pointed question. And that question was 13 had in this case was given to the FBI. 14 whether or not Mr. Edwards had subpoenaed the 14 It is clear that not only Mr. Kuvin, 15 State Attorney's office or the United States, 15 Mr. Edwards, and Mr. Horowitz who does not have 16 the USAO. And in fact, Mr. Edwards as well as 16 any state court cases but has several, l think 17 various other lawyers have the information that 17 seven federal companion cases, they have this 18 they are seeking here today which I have 18 information, Your Honor. 19 deduced from other depositions. 19 By way of getting this information from 20 For example, at the deposition of 20 other sources, it does not implicate Jeffrey 21 Mr. Epstein of February 17th, 2010, Mr. Edwards 21 Epstein's Fifth Amendment rights. It doesn't 22 asked the following question: 22 implicate Rules 408, 410, or 502. 23 The 87 page police report, police 23 But to require Jeffrey Epstein to thumb 24 department incident report where there are 24 through information and select as the federal 25 numerous underage females describing their 25 court has already ruled in the attached orders a — 4 (Pages 13 to 16) PROSE COURT REPORTING AGENCY, INC. 0401tonloilly signed by Cynthia hopkins (601-051-976-2934) 51190943-6636-47c1a2dd-d612305779ff EFTA01082637  Page 17 Page 19 1 and select information that may be responsive 1 documents himself, how does that implicate the 5 2 would, quote, and I am not quoting but I will 2 work-product privilege in your mind? 3 paraphrase, but it is in the order, would, 3 MR. EDWARDS: I don't see how it does 4 quote, require Epstein to effectively use his 4 implicate the work-product privilege. He is 5 mind and therefore testify to the genuineness, 5 taking information that was in the government's 6 the location of the documents which would 6 possession. And I saw his affidavit but it is 7 implicate the Fifth Amendment 7 somewhat inconsistent with what Mr. Pike just 8 They can get this information from other 8 said. I referred to an 87-page police report 9 sources, and I am not quite sure what 9 that apparently Mr. Goldberger didn't select. 10 Mr. Edwards told the Court is exactly correct. 10 And Mr. Pike says, well, isn't that exactly 11 I have not seen any -- obviously I don't need 11 what you are asking for us to give to you in 12 to see any Freedom of Information requests. 12 this discovery request. So, apparently they do 13 But I have not seen any subpoenas issued to the 13 have it. Thais the thing, I don't know what 14 FBI despite my concession earlier today that we 14 they have or what they don't have. 15 didn't have any information relative to those 15 But the mere fact that he selects various 16 particular requests. 16 items and chooses not to select other items, 17 I have not seen any requests to the State 17 that doesn't implicate the work-product 18 Attorney's office. I have not seen any 18 privilege to the extent -- if it does, it's 19 subpoenas to the Palm Beach Police Department 19 waived. That's something that the State 20 I haven't. And Mr. Edwards can correct me if1 20 Attorney's Office presumably knows what 21 am wrong. 21 documents were copied for him and given to him. 22 But this all can be, you know, another 22 So any information that he used to hand 23 avenue could be taken where all of these Fifth 23 select or pick these documents was already 24 Amendment implications are not at issue. 24 information that is known to the State 25 THE COURT: Okay. Thank you. 25 Attorney's Office. Page 18 Page 20 1 Mr. Edwards. 1 So, any work-product privilege that 2 MR. EDWARDS: Well, the requests made to 2 existed, which I really can't wrap my mind 3 the FBI and the subpoenas were made and that 3 around that argument, ifs waived by the mere 4 issue is before Judge Marra. I believed that 4 fact that the State Attorney's office is in on 5 they had responded to it but maybe it was just 5 it, they are in on the choosing, the hand 6 my office and the FBI's response. But either 6 selecting and the copying of these documents. 7 way, it's not only my office, Adam Horowitz's 7 And I think that we're certainly entitled 8 office has requested information from the FBI 8 to know what documents are related to, not only 9 as well. Its a process to go through. And 9 our clients but because of the nature of this 10 the easier process is to get them from Jeffrey 10 case, the other females that these documents 11 Epstein. Rather than go through the same 11 are going to be used against our clients and 12 arguments I made