EFTA00792811.pdf

1 2 UNCERTIFIED TRANSCRIPT DISCLAIMER IN THE MATTER OF 3 EPSTEIN 4 v. 5 EDWARDS 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DRAFT ONLY !!!! NOT PROOFREAD EFTA00792811  1 The following transcript(s) of proceedings, or any portion 2 thereof, in the above-entitled matter, taken on November 3 29th, 2017, is being delivered UNEDITED and UNCERTIFIED by 4 the official court reporter at the request of Kara 5 Rockenbach, Esquire. 6 The purchaser agrees not to disclose this uncertified and 7 unedited transcript in any form (written or electronic) 8 To anyone who has no connection to this case. 9 This is an unofficial transcript, which should NOT be 10 relied upon for purposes of verbatim citation of 11 testimony. 12 This transcript has not been checked, proofread 13 or corrected. It is a draft transcript, NOT a certified 14 transcript. As such, it may contain computer-generated 15 mistranslations of stenotype code or electronic 16 transmission errors, resulting in inaccurate or 17 nonsensical word combinations, or untranslated stenotype 18 symbols which cannot be deciphered by non-stenotypists. 19 Corrections will be made in the preparation of the 20 certified transcript, resulting in differences in content, 21 page and line numbers, punctuation and formatting. 22 This realtime uncertified and unedited transcript contains 23 no appearance page, certificate page, index or 24 certification. 25 DRAFT ONLY !!!! NOT PROOFREAD EFTA00792812  1 THE COURT: We are here on Epstein 2 versus Rothstein and Edwards. The two 3 applicable parties being dealt with -- have 4 a seat, please. Thank you. 5 -- being Mr. Epstein and Mr. Edwards, 6 and the counterclaim brought by Mr. Edwards 7 against Epstein relative to a malicious 8 prosecution claim that has been brought. We 9 will confine our arguments to that 10 particular matter. And we will keep in mind 11 the following: Direct all of your arguments 12 to the bench. Please do not speak to each 13 other. Please stay away from any 14 pejorative, unnecessary comments as it 15 relates, in particular, to the 16 counter-defendant. 17 I will remind you that the Court order 18 that I executed relative to the continuous 19 of the trial on 14 November this year, 20 ordered that no replies be provided to the 21 Court absent court order. You have violated 22 my order. The replies are being ignored. I 23 do not expect that to be repeated, absent 24 sanctions. Is that understood? Both sides? 25 Ms. Rockenbach? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792813  1 MS. ROCKENBACH: Yes, Your Honor. 2 THE COURT: Mr. Scarola? 3 MR. SCAROLA: Yes, Your Honor. 4 THE COURT: If I need them, I will ask 5 for them. I have several bankers boxes' 6 worth of materials here. I don't need 7 anything further unless I request it. 8 I am well-advised in the case, as you 9 may or may not know. I think I announced 10 this earlier, for whatever it's worth, I 11 handled the underlying cases in division AB. 12 So I have had a long history in dealing with 13 the matters that surround the instant 14 action. Let's start with the 15 counter-defendant's revised omnibus motion 16 in limine. 17 MR. LINK: May it please the Court. 18 THE COURT: Yes, sir. Thank you. 19 MR. LINK: Thank you, Your Honor. We 20 know that we have provided you with a 21 forest, maybe two forests, and we really 22 appreciate your spending the time to go 23 through it. 24 If you think back to the motion that we 25 filed to continue -- and we appreciate Your DRAFT ONLY !!!! NOT PROOFREAD EFTA00792814  1 Honor giving us time to understand what this 2 case is about. The reason we need this time 3 and we need your time today is because we 4 are not sure what case we're trying. And we 5 have to understand what case we're trying, 6 Judge, in order to determine what evidence 7 should come in. 8 So with Your Honor's permission, I 9 would like to just show you what I've put up 10 here, so -- 11 THE COURT: Do you have a hard copy of 12 your PowerPoint? 13 MR. LINK: Yes, sir. 14 THE COURT: If I may have it. 15 MS. ROCKENBACH: May I approach, Your 16 Honor? I shared this with Mr. Scarola last 17 evening. 18 THE COURT: Thanks. 19 MR. LINK: Your Honor, before we get 20 to the blowup and the screen, I would like 21 to just take a minute and talk to you about 22 what we think the evidentiary issues we have 23 raised in our motion that have to be 24 resolved. 25 The first is -- and I know Your Honor DRAFT ONLY !!!! NOT PROOFREAD EFTA00792815  1 know -- you have told us this over and 2 over -- you know the elements of malicious 3 prosecution, and that you know them well, 4 and they're well-settled. 5 But when you read the papers you will 6 see there is a disagreement about what those 7 elements are. And so I just want to take a 8 moment to go through them and find out -- 9 what we really need to understand before we 10 can try this case to a jury is this: what 11 facts are in dispute that a jury has to 12 decide. That's our struggle. 13 So, Your Honor, the malicious 14 prosecution, element one, the commencement 15 of a proceeding, that is not an issue in 16 this case. 17 Element two. Was it filed by the 18 present defendant -- the counter-defendant. 19 Not an issue in this case. 20 Item three. The bona fide termination 21 in favor of the plaintiff. That is an issue 22 in this case. 23 That takes me to item two for one 24 moment on my board, Your Honor, which is 25 burden of proof. The counter-plaintiffs DRAFT ONLY !!!! NOT PROOFREAD EFTA00792816  1 suggest in their papers that once they prove 2 the underlying claims by Mr. Edwards' three 3 plaintiffs that were settled in 2010, that 4 they have met enough to go forward and skip 5 by the bona fide termination. 6 The reason the bona fide termination is 7 important is that that is the one area in 8 the burden of proof -- the one area that 9 shifts to us as -- 10 THE COURT: If I'm not mistaken, are we 11 talking about bona fide termination of the 12 Epstein action brought by Epstein versus 13 Rothstein and Edwards? 14 MR. LINK: Yes. 15 THE COURT: So why are we dealing with 16 the underlying claims of the bona fide 17 termination issue? 18 MR. LINK: I don't know why we are, 19 except that is part of the papers that we 20 are dealing with. 21 THE COURT: They are part of the 22 papers, as I understand it, so as to 23 establish a nexus between the reason why 24 Mr. Epstein brought this claim in the first 25 place against Rothstein and Edwards, and to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792817  1 try to determine the rationale that 2 Mr. Epstein had to bring this case in the 3 first place, which is a question that the 4 jury is going to have, which is a question 5 that the Court has, and what was the reason 6 behind bringing this case. 7 Was it one of vengeance? Was it one of 8 hatred? Was it one of -- 9 MR. LINK: Malicious. 10 THE COURT: Malicious. Let me get to 11 the point. Was it one of feeling that he 12 was taking -- that the part of those whose 13 investments were had by Rothstein as a 14 result of that massive Ponzi scheme -- as he 15 indicates in his deposition -- he felt that 16 these people were taken advantage of as a 17 result of Rothstein's misdeeds? I don't 18 know what the reason was, and I'm sure the 19 jury is going to ask what the reasons were. 20 But there is going to be some introduction, 21 albeit it tempered -- clearly tempered -- 22 MR. LINK: Yes, sir. 23 THE COURT: And Ms. Rockenbach I 24 believe she was the signatory to the 25 motion -- acknowledges that some of that DRAFT ONLY !!!! NOT PROOFREAD EFTA00792818  1 information is going to be in. There is no 2 way we're going to be able to sanitize the 3 case to that extent. 4 MR. LINK: We wouldn't ask the Court to 5 do that. 6 THE COURT: So that's what I'm trying 7 to understand. Why are we going there when 8 it comes to bona fide termination? 9 MR. LINK: The reason is that I want to 10 make sure that we are all on the same page 11 about whose burden of proof in the case, 12 because that will make a difference about 13 the evidence that needs to come in. 14 THE COURT: I don't think there is any 15 issue -- I don't believe Mr. Scarola is 16 taking issue that initially the burden of 17 proof is with the counter-plaintiff Edwards 18 as to the determination or the showing that 19 there was a bona fide termination of the 20 case in his client's favor -- this case, 21 meaning Epstein versus Rothstein and 22 Edwards, and specifically Rothstein versus 23 Edwards. Is that fair, Mr. Scarola? 24 MR. SCAROLA: It's fair, Your Honor, 25 that we acknowledge that we have the burden DRAFT ONLY !!!! NOT PROOFREAD EFTA00792819  10 1 of proof with regard to every element. 2 It is also our position that the issue 3 as to whether the underlying claim was bona 4 fiably terminated in favor of Bradley 5 Edwards is an issue of law for the Court. 6 There are no disputed -- Mr. Edwards is 7 present, yes. 8 There are no disputed issues of fact 9 with regard to what happened, and therefore, 10 the Court will need to make the legal 11 determination as to whether that constitutes 12 a bona fide termination. And we believe 13 that that is an issue that has been resolved 14 through the appellate process as well. 15 THE COURT: Up to the point where 16 there's a belief that the issue has been 17 resolved through the appellate process as 18 well, I agree with Mr. Scarola's position. 19 At this point, in my view, ultimately 20 it becomes potentially a legal issue. If 21 the facts are clear and there's no factual 22 dispute, then it becomes purely a legal 23 decision as to whether or not there's been 24 bona fide termination. 25 MR. LINK: We agree 100 percent, Judge. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792820  11 1 100 percent. 2 THE COURT: I don't want to deviate -- 3 MR. LINK: I know. So I'm going to go 4 to the next piece, which is the key, which 5 is the absence of probable cause. And the 6 absence of probable cause focuses here -- 7 the absence of probable cause -- and this is 8 what Your Honor was just talking about -- 9 focuses here. December 7th, 2009. That's 10 when Mr. Epstein brought his claim against 11 Rothstein, Mr. Rothstein's firm and 12 Mr. Edwards. 13 THE COURT: Did he bring it against 14 Rothstein's firm? I only have Rothstein 15 individually -- 16 MR. SCAROLA: Rothstein, individually 17 and Bradley Edwards, individually. 18 MR. LINK: My apologies. 19 THE COURT: That statement is 20 retracked. It's Rothstein individually and 21 Edwards, individually. Mr. Scarola 22 concurred and Mr. Link has now concurred. 23 MR. SCAROLA: And L.M., which I think 24 is of some significance also. 25 THE COURT: Was she brought in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792821  12 1 originally? 2 MR. SCAROLA: Yes. 3 MR. LINK: She was, Judge. 4 Here is our view of what we have to do 5 when we look at the evidence we are going to 6 show you -- the exhibit list, the testimony 7 to come in -- is to focus on what the jury 8 is going to have to decide. 9 Again, I'm not sure what the facts are 10 in dispute, but it's here. The only 11 information that makes a difference is what 12 Epstein -- what Epstein looked at; what he 13 considered; the inferences he drew from that 14 information; and whether when you take the 15 totality of that information, Your Honor, he 16 had a reasonable basis to bring a civil 17 proceeding against Mr. Edwards. 18 I don't think there is any dispute. I 19 have read the Court's transcript where the 20 Court has said -- the case against 21 Mr. Rothstein, I understand that. I don't 22 think anybody is disputing that. The 23 question is was there sufficient -- 24 THE COURT: Hold on. Hold on a minute. 25 Let's not take my comments out of context. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792822  13 1 Whether or not there was ever any issues 2 that Mr. Epstein had viably against either 3 Rothstein, Edwards or L.M. are still, as far 4 as the Court is concerned, unanswered. 5 MR. LINK: Remember we have a default 6 against Mr. Rothstein. 7 THE COURT: That's a different issue. 8 MR. LINK: I understand your point, 9 Judge. 10 THE COURT: I don't want my comments to 11 be taken out of context. 12 MR. LINK: Fair enough. 13 THE COURT: A default is different than 14 a court indicating some type of 15 understanding as to Mr. Epstein's cause of 16 action against Rothstein in this particular 17 case. Because, as I said, the jury will 18 question and the Court continues to question 19 why Mr. Epstein brought this case in the 20 first place. 21 MR. LINK: Fair enough. Thank you for 22 the clarification. 23 THE COURT: And the reason why that's 24 important is because the counter-plaintiff 25 has argued that circumstantially -- and DRAFT ONLY !!!! NOT PROOFREAD EFTA00792823  14 1 based upon, in large part, invocation of the 2 Fifth Amendment by Mr. Epstein, they are 3 going to need to prove that or disprove that 4 potentially through the Fifth Amendment 5 issues that we are going to be discussing. 6 Because while Mr. Epstein may have his 7 own motivation, circumstantially it is going 8 to be up to the plaintiff to prove that 9 motivation was not, in fact, in good faith. 10 And I'm using good faith not as a term -- 11 not as a legal term, but more of a term of 12 art. 13 MR. LINK: I understand that. 14 THE COURT: So, it brings us to the 15 point that we need to get to. So I am with 16 you so far in terms of where you're going. 17 And you're leading me through this. I 18 appreciate it very much. 19 But it does get us now to this really 20 critical issue of, well, again, there's this 21 huge question that's being asked by -- going 22 to be asked by the finder of fact and the 23 trier of the law, and that is, how does the 24 counter-plaintiff prove its case when 25 Mr. Epstein has answered selected questions? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792824  15 1 I was -- I am now paraphrasing 2 Mr. Epstein's answers in large part. I 3 found out that Rothstein was factoring these 4 cases. I found out that these investors 5 were being taken advantage of. Taken 6 advantage of through the forging of an 7 order -- forging of an order that purported 8 to have the signature of Judge Marra -- a 9 tremendously well-respected jurist in this 10 community, now taken senior status. 11 I, meaning Mr. Epstein, was not only 12 concerned about Rothstein doing what he did, 13 but also I had suspicions that Mr. Edwards 14 was involved in this process, because there 15 were some articles that discussed the query 16 could Rothstein have done this alone, and 17 implicated at least the cases -- not to my 18 knowledge Mr. Edwards -- but the cases that 19 Mr. Edwards was serving as lead counsel. 20 Some before this particular court in 21 division AB back in 2009 and that period of 22 time -- perhaps just around that period of 23 time. 24 So there's going to be a large question 25 in the trier-of-facts' mind and remains in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792825  16 1 the Court's mind. How was Mr. Epstein 2 damaged by what transpired from the 3 standpoint of Rothstein, or what may have 4 transpired from his own mind as it relates 5 to Mr. Edwards? 6 That's going to be a huge question, and 7 remains a huge question. What was Epstein 8 doing at that time, meaning, why did he file 9 this lawsuit? What was his damages? Why 10 was he even doing this in the first place? 11 That's going to create an issue. 12 And the reason I bring it up is solely 13 to get into the argument that's going to be 14 raised by the counter-plaintiff Edwards. 15 And that is how do we prove this where 16 Epstein chooses to answer only certain 17 questions regarding his motivation, i.e., 18 malice, and probable cause? 19 But it doesn't answer questions germane 20 to his mindset that, okay, there were these 21 factored cases by Rothstein. He's paying a 22 severe price for what he did. 23 The millionaire investors who got 24 involved in this Ponzi scheme have clearly 25 been damaged and restitution has been paid, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792826  17 1 to my understanding, to the extent that 2 those assets of Rothstein's and those who 3 were otherwise implicated paid what they 4 paid. 5 But how is Mr. Epstein damaged, and 6 what was his motivation -- other than 7 altruism, other than the questions that were 8 asked by Mr. Scarola, which he didn't 9 answer -- that could have been referencing a 10 myriad of things: vengeance, anger, 11 hostility. But they have that ability -- in 12 my respectful view, in reading these 13 materials -- to be able to raise those 14 issues and perhaps through the Fifth 15 Amendment Avenue. 16 MR. LINK: Maybe, Your Honor. 17 THE COURT: We need to concentrate on 18 that. And we need to not only look at -- 19 what I'm trying to say is, through 20 Ms. Rockenbach's excellent written 21 presentation -- 22 MR. LINK: I helped a little bit, 23 Judge. 24 THE COURT: Actually, Mr. Link signed 25 it. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792827  18 1 MR. LINK: There you. I took credit 2 for it all, Your Honor. 3 THE COURT: My apologies. 4 MR. LINK: It was a little bit of me. 5 THE COURT: We get in trouble when we 6 assume. Irrespective of that, Mr. Link 7 signed it. So you can tell I'm more 8 concentrated on the body of work than who 9 necessarily executed it. 10 But what I am trying to say is, what I 11 believe respectfully is being done here is 12 it's a one-sided argument. 13 Now, I agree that you have to zealously 14 represent your client and take his side, and 15 I have no problem with that. But what I'm 16 also suggesting is, at the same time, there 17 has to be some consideration and some 18 concession that they have a viable -- I 19 won't say viable claim -- but they have 20 viable arguments to support what they are 21 trying to accomplish. And the means to do 22 that is largely hamstrung by Mr. Epstein's 23 refusal to answer questions. 24 Go ahead. 25 MR. LINK: Thank you, sir. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792828  19 1 Those are exactly the issues we have. 2 And there's one thing, Your Honor, I think 3 that I would ask you to consider. This is 4 very important. And I will tell you that if 5 you walk through these elements, this 6 element right here -- this is the key -- the 7 absence of probable cause does not take into 8 consideration anybody's motive, their anger, 9 their malice, their state of mind or 10 anything else other than -- other than -- 11 and we will get to malicious -- you are 12 dead-on -- but probable cause is an 13 objective standard. If the facts are not in 14 dispute, it's an objective standard to be 15 determined by this Court. That's what the 16 Florida Supreme Court has told us. 17 So, what's important -- what's 18 important is the counter-plaintiff doesn't 19 challenge that this information was 20 available. They don't challenge that the 21 information, when read, it says Rothstein 22 was involved in a Ponzi scheme. It says 23 Mr. Epstein's three cases were being used to 24 lure investors and information about them 25 was fabricated. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792829  20 1 So there's not a dispute about that. 2 The question is this. The question is, did 3 Mr. Epstein have some reason to doubt or not 4 believe the information he was reading. 5 Because even though probable cause, Your 6 Honor, is an objective standard, if I know 7 what I'm reading is false, then I haven't 8 really in good faith relied on it. 9 But it doesn't matter. The case law 10 says you cannot establish probable cause or 11 the lack of it by the most actual malice 12 known to man. 13 I can hate this gentleman. I can want 14 to bury this gentleman. I can want to run 15 him out of business. But if I have 16 objective probable cause -- 17 THE COURT: And you are saying, as a 18 matter of law, you are suggesting to me that 19 newspaper articles -- which are the bulk of 20 the reliance that Mr. Epstein is 21 suggesting -- is sufficient to establish 22 probable cause? 23 MR. LINK: Yes, sir, I am. 24 THE COURT: We are really not there yet 25 because -- DRAFT ONLY !!!! NOT PROOFREAD EFTA00792830  21 1 MR. LINK: I know we're not. 2 THE COURT: -- this isn't a motion for 3 summary judgment. 4 MR. LINK: It's not. But I wanted to 5 answer the Court's question. 6 I think it's really important, Judge, 7 as we go forward, that we differentiate the 8 element of probable cause and the element of 9 malice. Because you are exactly right. 10 When you get to item five, malice, what's 11 his intent to hurt Mr. Edwards. That is 12 absolutely relevant for the jury's 13 determination. No question. Okay. It is. 14 But it is not relevant to whether there was 15 a lack of probable cause. And that's a 16 balance that we have here because -- 17 THE COURT: What's not relevant in the 18 absence of probable cause? Are you talking 19 about malice? 20 MR. LINK: Malice. Intent. We will 21 show you cases, Your Honor, where it says if 22 you have probable cause and you have malice, 23 there's no claim for malicious prosecution. 24 You only look at malice once you've 25 established probable cause. You can't use DRAFT ONLY !!!! NOT PROOFREAD EFTA00792831  22 1 malice to establish probable cause. You 2 can, on the other hand, use probable cause 3 to establish malice. 4 THE COURT: I understand. 5 MR. LINK: That makes sense? 6 THE COURT: I understand you 7 completely. 8 MR. LINK: The reason that's important 9 is because if you combine -- if you say, 10 What's in his mind? How is he trying to 11 hurt this guy? When he's reviewing the 12 Razorback complaint, the U.S. Attorney's 13 statement, and the newspapers articles that 14 are out there, then you are combining malice 15 and probable cause. 16 So, that's what we have to avoid. It's 17 really critical, and here is why. 18 By the way, I want for the Court to 19 know I really appreciate the hard work that 20 Mr. Edwards' team has put in. They did a 21 lot of writing. We did a lot of writing. 22 We have crystalized the issues for this 23 Court's determination. 24 So one of the things that Mr. Edwards 25 tells us in his response to our motion in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792832  23 1 limine, he wants to tell us how he's going 2 to try this case. And here is what he says. 3 "Edwards starts by proving the truth of the 4 claims he brought on behalf of his three 5 clients." 6 That evidence, Your Honor, if this case 7 hadn't settled, would absolutely have been 8 relevant to that trial, without a question. 9 Every -- I shouldn't say every -- many 10 of the questions that were asked of 11 Mr. Epstein that he took the Fifth to very 12 well could have been relevant to this 13 lawsuit, okay? But the truth of the 14 allegations that they were making has 15 nothing to do with what Mr. Epstein reviewed 16 in 2009 before he brought the suit. 17 There's nothing that's in their mind or 18 that happened to them that can have 19 influenced Mr. Epstein when he was reading 20 the material. 21 THE COURT: So what you're suggesting, 22 though, Mr. Link, is that there could never 23 be a successful plaintiff in a malicious 24 prosecution case. 25 MR. LINK: No, sir. I'm not suggesting DRAFT ONLY !!!! NOT PROOFREAD EFTA00792833  24 1 that at all. I will give you an example. 2 What if this lawsuit was filed and there 3 were two articles that existed that said 4 that Mr. Edwards had nothing to do with the 5 Ponzi scheme. And Mr. Epstein, in looking 6 at the information that was available, took 7 that information -- or he knew Mr. Edwards 8 wasn't involved at all in any way -- and I'm 9 not telling you that Mr. Edwards was. I am 10 saying based on the information at that 11 time -- 12 THE COURT: Where was that information, 13 by the way, that suggests Mr. Edwards had 14 involvement? 15 MR. LINK: The information that 16 suggests that he had involvement is this. 17 MS. ROCKENBACH: Your Honor, may I 18 approach? I have a copy that might be 19 better for the Court. I shared this with 20 Mr. Scarola yesterday. 21 MR. LINK: Your Honor asked a great 22 question. It is without a doubt nothing in 23 the press or the U.S. Attorney's office or 24 anywhere else that comes out before 25 Mr. Rothstein goes down that connects DRAFT ONLY !!!! NOT PROOFREAD EFTA00792834  25 1 directly Mr. Edwards to the Ponzi scheme. 2 It does not. 3 So what we have to then look at is this 4 information. So you have as your 5 backdrop -- put yourself in Mr. Epstein's 6 shoes for a minute. You have as a backdrop 7 your reading that the three cases that you 8 have are being used to solicit investors, 9 and you're being told that you have already 10 offered a $30 million settlement, which was 11 untrue. That you've already agreed to pay 12 $200 million, which was untrue. That there 13 were 50 other claimants out there at the 14 Rothstein firm, which were untrue. And you 15 read all of that, and then you start 16 thinking about what's happened in the 17 litigation against you. 18 In the litigation against you, you 19 start to see things that are different from 20 when Mr. Edwards was a sole practitioner. 21 THE COURT: Freeze that phrase for a 22 moment. 23 MR. LINK: Yes, sir. 24 THE COURT: When you think about the 25 litigation that was brought against you -- DRAFT ONLY !!!! NOT PROOFREAD EFTA00792835  26 1 when you are saying what Mr. Edwards brought 2 against Mr. Epstein, correct? 3 MR. LINK: Yes, sir. 4 THE COURT: Very well. 5 MR. LINK: Yes, sir. That's what I'm 6 talking about. 7 THE COURT: I want to make sure that 8 that is what you're saying. 9 MR. LINK: We're on the same page. 10 Edwards' clients versus Mr. Epstein. 11 And you look at the time period that 12 Mr. Edwards is at Rothstein's -- this is 13 really the question. I think it's a legal 14 question. The question is, was there 15 sufficient smoke for you to think there 16 could be fire? Was there sufficient 17 information that you could draw a reasonable 18 inference from that would allow you to bring 19 a civil claim? And here is what we see. We 20 see many different things that happened. 21 So, for example, all of a sudden you 22 have Mr. Edwards and his team saying they 23 want to depose Donald Trump, Bill Clinton. 24 And there wasn't any testimony from the 25 three folks that Mr. Edwards represented DRAFT ONLY !!!! NOT PROOFREAD EFTA00792836  27 1 that they had any contact with Mr. Clinton 2 or Mr. Trump, or any of the other folks that 3 they said they wanted to depose. 4 The three folks that Mr. Edwards 5 represented never said they were on one of 6 Mr. Epstein's planes, yet they spent 12 7 hours deposing Mr. Epstein's pilot and 8 didn't ask a single question about 9 Mr. Edwards' clients. 10 He had a state court case filed on 11 behalf of L.M. He then files a 234-page 12 federal court complaint with 100-and-some 13 counts that he never serves. 14 He then files a motion for fraudulent 15 transfer in the federal case saying 16 Mr. Epstein is fraudulently transferring 17 assets, and lists in there all these assets 18 he has. And Judge Marra denies it and says 19 this was brought without any evidence 20 whatsoever. 21 So if you look at these things that 22 happened, and you now have them in the 23 context of, wait a minute, I just read that 24 Rothstein was telling folks that these cases 25 were worth $500 million, and Mr. Epstein has DRAFT ONLY !!!! NOT PROOFREAD EFTA00792837  28 1 already offered $200 million. And that's 2 not enough. We are going to get more. 3 If you are Mr. Epstein, you start 4 thinking, Well, was all of this stuff being 5 done to generate information to show the 6 investors in the Ponzi scheme? Then we know 7 that the flight logs that came from the 8 pilots, that had nothing to do with the 9 three plaintiffs that Mr. Edwards used were 10 used by Rothstein to show investors. 11 THE COURT: But couldn't that same 12 information, Mr. Link, serve the 13 counter-plaintiff as well as it might serve 14 Mr. Epstein, which creates a potentially 15 classic jury question? And that is, that 16 all of these things that were done -- the 17 inconveniencing of his pilots, the 18 inconveniencing of his high-level friends, 19 the implications of these high-level 20 friends -- all of these things that were 21 done to anger Mr. Epstein at or around the 22 time, if my memory serves, when these cases 23 were being settled -- doesn't that serve 24 them just as well to create an issue of 25 probable cause as it does your client to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792838  29 1 say, Well, all of these things were done? 2 And it then gets us back to what I 3 earlier asked, and that is, even if that's 4 taken as true, even if Rothstein was pumping 5 these cases up and claiming to these 6 investors that it was then publicly known 7 through primarily the press, media was 8 swarming -- as they should have been -- over 9 this absolute criminal act, the likes of 10 which, from an economic standpoint, from a 11 private individual, perhaps has still never 12 been seen before, other than Mr. Madoff in 13 New York. 14 But the point I'm trying to make is, it 15 still gets me back to that same question. 16 Yeah, Mr. Epstein may have been angry, he 17 may have been concerned about his friends, 18 the high-level people that he associated 19 with, and how this could drag him down as 20 well as them. Certainly a bona fide 21 concern, perhaps. 22 But then it gets to the question, yeah, 23 with all of that, it still gets me to my 24 original question and what the jury is going 25 to be asking, more importantly, how was DRAFT ONLY !!!! NOT PROOFREAD EFTA00792839  30 1 Mr. Epstein damaged as a result of this 2 activity? 3 MR. LINK: May I answer that question? 4 But then I have to weave back, because you 5 gave me something I have got to talk about. 6 THE COURT: Sure. 7 MR. LINK: The damage that he felt -- 8 now, let's keep in mind what case we're 9 trying today -- or will be trying -- which 10 is whether there was probable cause to go 11 forward. 12 THE COURT: Against Mr. Edwards? 13 MR. LINK: Against Mr. Edwards. We are 14 not trying the case against Mr. Edwards. We 15 don't have to prove who would have won that 16 case. So I'm going to get back to that in a 17 sec. 18 What he thought his damages were at the 19 time, his real dollar damages is that he was 20 spending money paying lawyers to defend what 21 was happening during this Rothstein period. 22 And so if you connect the dots and say, 23 okay -- you said it better than I did, 24 Judge. Rothstein is doing these criminal 25 activities, which included using my name, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792840  31 1 three legitimate lawsuits -- 2 THE COURT: Who is my? 3 MR. LINK: Mr. Epstein. 4 THE COURT: Okay. 5 MR. LINK: I keep trying to make you 6 Mr. Epstein for my example. It's the only 7 way it works for me. 8 If you're Mr. Epstein and you see -- 9 Judge, you see what's in the press and how 10 your -- I want to make this clear. We have 11 never challenged when Mr. Edwards filed them 12 that he didn't have a good faith, legitimate 13 basis to do so back in 2008. That's not 14 what this case is about. 15 But in 2009, if you're Mr. Epstein and 16 you see all of this information and you look 17 at what's happening here and you say, Have I 18 spent legal fees, paid my lawyers in order 19 to have to defend activity that was really 20 designed not to benefit the three 21 plaintiffs, but to let Rothstein take it and 22 show investors? 23 And we know, as a matter of fact, 24 Judge, that Rothstein did it. He used 25 bankers boxes from the Epstein cases. He DRAFT ONLY !!!! NOT PROOFREAD EFTA00792841  32 1 used flight manifests from the Epstein 2 cases. So he actually used the information 3 that was provided to him by Mr. Edwards to 4 show investors. 5 This is going to answer your question. 6 This is key. I think I remember your 7 question. This is key, if I remember your 8 question. You said what if Mr. Edwards had 9 a legitimate purpose? I believe Mr. Edwards 10 can get on the stand and persuade you, 11 Judge, he had a reasonable basis for doing 12 everything he did. 13 THE COURT: I didn't ask that question. 14 MR. LINK: Well, you said what if he 15 had a legitimate basis? What he was doing 16 was trying to benefit the three folks. 17 THE COURT: No. What I said was, 18 couldn't that information that you just 19 indicated to me that forms the basis for 20 Mr. Epstein allegedly bringing this suit, 21 could that not be -- could that not be 22 utilized by Mr. Edwards to submit to the 23 fact that -- submit the fact that the reason 24 why Epstein brought this suit in the first 25 place was one of trying to get back at DRAFT ONLY !!!! NOT PROOFREAD EFTA00792842  33 1 Edwards for inconveniencing his friends, for 2 dragging those friends -- high-level friends 3 into the process, for inconveniencing his 4 pilots? All of these things that I brought 5 out. That was the point that I made. 6 MR. LINK: What element of the claim is 7 that for? What element? That's malice. 8 It's not probable cause. What Mr. Edwards 9 thought, what he did, why he did it, has 10 nothing to do with probable cause. It may 11 have, Your Honor, a lot to do with malice. 12 THE COURT: I think it has a great deal 13 to do with probable cause, quite frankly. I 14 think it's a mixed bag, so to speak, when 15 you get to probable cause and malice. 16 I agree with you that probable cause 17 has to be proven before malice. But I think 18 that there are -- certainly, in a case like 19 this, which is an extremely unusual and 20 complex matter that there are lead-overs, if 21 you will, as it relates to probable cause 22 and the malice elements. And I don't think 23 it can be disputed here. This is not like 24 the simple cases that we read in Florida 25 Jurisprudence that deal with malicious DRAFT ONLY !!!! NOT PROOFREAD EFTA00792843  34 1 prosecution the more simple concrete-type of 2 cases that sets one plaintiff against one 3 defendant. This is different. 4 And I think that the issue of malice 5 and probable cause are going to be somewhat 6 congealed and somewhat of a lead-over from 7 probable cause to malice. Not vice versa. 8 I understand the parameters legally in that 9 regard. 10 MR. LINK: I agree with everything you 11 just said except -- without incurring the 12 wrath of the Court -- I have to dispute the 13 first part you said because I don't believe, 14 Your Honor, that the law is, what's in 15 Mr. Edwards' mind -- what's in Mr. Epstein's 16 mind about his reasons for bringing the 17 case, have anything to do with probable 18 cause. I think they have everything to do 19 with a malice. 20 And the law is very clear. You can't 21 use malice to demonstrate probable cause. 22 So if you can't use malice, what difference 23 does it make how much Mr. Epstein may have 24 hated Mr. Edwards and wanted to do him harm? 25 MR. SCAROLA: I thought that you were DRAFT ONLY !!!! NOT PROOFREAD EFTA00792844  35 1 pausing, and I wanted to raise a procedural 2 question. If you are pausing -- 3 MR. LINK: No problem. I never know 4 when I'm pausing either. 5 MR. SCAROLA: I have the same problem. 6 Your Honor, I'm a little bit confused 7 about the direction that that argument is 8 taking, because I thought we were arguing a 9 motion in limine to exclude evidence. And 10 once there's a concession that the evidence 11 is relevant to malice, even if we accept -- 12 and I don't -- that it's not relevant to 13 probable cause, it's relevant and it comes 14 in. 15 So I suggest that, since we have had an 16 on-the-record concession of the relevance of 17 the evidence, that part of the argument is 18 over. 19 THE COURT: Well I think Mr. Link -- I 20 am giving him latitude, because I 21 interrupted him to ask these questions that 22 really needed to be answered from my 23 standpoint. And as I look at these cases 24 that are going to trial, I also try to put 25 myself, not in either parties' shoes, but DRAFT ONLY !!!! NOT PROOFREAD EFTA00792845  36 1 certainly in juries' shoes when it comes to 2 questions that they're going to have, and 3 that really needs to be answered, because it 4 helps me to narrow the issues as well. So I 5 appreciate your courtesies in that respect. 6 MR. LINK: My pleasure, Your Honor. 7 THE COURT: Let's go ahead -- and if we 8 could, let's get to the core issues that 9 we're dealing with today and see where we 10 are, because Mr. Scarola also makes a good 11 point. I mean, a lot of this material that 12 seems to be a matter of your motion when it 13 comes to excluding this testimony or this 14 evidence, it's essentially been conceded 15 that most of this evidence is going to be 16 relevant. 17 MR. LINK: I didn't say that. I want 18 to be very clear. I did not say that the 19 evidence that he wants to submit or the 20 questions he asked or the exhibits that he 21 listed should come in on malice. What I 22 said to the court is that Mr. Epstein's 23 state of mind and how much he would have 24 disliked Mr. Edwards or wanted to hurt him 25 would be relevant to malice. That's very DRAFT ONLY !!!! NOT PROOFREAD EFTA00792846  37 1 different than asking the question about do 2 you have a preference for minor children. 3 THE COURT: So if we can, move now to 4 issues of evidence that is being sought to 5 be limited in terms of its introduction to 6 the jury. 7 MR. LINK: Yes, Your Honor. My partner 8 Ms. Rockenbach will handle that. 9 And, Your Honor, just so the Court's 10 aware, Ms. Rockenbach has a professionalism 11 meeting at Mr. Scarola's office that starts 12 at noon. Do you mind breaking at 11:45? 13 THE COURT: That's fine. I have a 14 court luncheon, as well, with my colleagues 15 down in the judicial dining room at noon, so 16 that's not a problem. 17 MS. ROCKENBACH: Your Honor, I would 18 like to take the first issue in the 19 omnibus -- revised omnibus motion in limine. 20 But before we talk about Fifth 21 Amendment, I just want cite one case to Your 22 Honor before we leave this arena of probable 23 cause. 24 When I was reviewing the case law in 25 preparation for this hearing, I chuckled to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792847  38 1 think that the Florida Supreme Court in 1926 2 called this an ancient action, malicious 3 prosecution. But it is that very case that 4 answers a point that Your Honor was just 5 discussing. I'm talking about the Tatum 6 Brothers case. And it says in Tatum 7 Brothers -- 8 THE COURT: Do you have a tab number 9 for me? 10 MS. ROCKENBACH: The tab number is -- I 11 don't know that actually. I might be able 12 to get that. 13 THE COURT: If it's in your binder, I 14 can probably find it. You did a good job 15 with your -- 16 MS. ROCKENBACH: The index. 17 THE COURT: -- index. Yeah. I don't 18 have a Tatum Brothers by that first name. 19 MS. ROCKENBACH: I apologize, Your 20 Honor. It's at 92 Florida 278, and it's 21 published in 1926. The court said it is 22 well established that want of probable cause 23 cannot be inferred from malice, however 24 great such malice may be, even the most 25 express malice. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792848  39 1 So before we leave that arena, that 2 case back in 1926 said that you can't go 3 backwards. You can't find malice then infer 4 probable cause. 5 THE COURT: I understand. I am just 6 making a point that, in this set of unusual 7 facts, it's not necessarily a clear-cut 8 distinction that can be drawn. 9 But again, sometimes facts will create 10 these types of issues and they will be 11 different than the 1926 set of facts. 12 But go ahead. 13 MS. ROCRENBACH: This is true. 14 So, Your Honor, the first issue about 15 the Fifth Amendment, I want to be clear that 16 with regard to probable cause, my client has 17 an