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IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION AG
CASE NO. 502009CA040800XXXXMB
Judge David F. Crow
JEFFREY EPSTEIN,
Plaintiff/Counter-Defendant,
v.
SCO"IT ROTIiSTEIN, individually, and
BRADLEY J. EDWARDS, individually,
Defendants/Counter-Plaintiffs.
PLAINTIFF JEFFREY EPSTEIN'S MOTION TO COMPEL
PRODUCTION OF DOCUMENTS FROM DEFENDANT BRADLEY EDWARDS
AND FOR SANCTIONS
Plaintiff, Jeffrey Epstein, by and through his undersigned counsel, hereby respectfully
seeks the entry of an Order compelling Defendant Bradley Edwards to produce the documents
listed in Edwards' privilege log, or, in the alternative, the entry of an Order compelling Edwards
to serve a privilege log that fully complies with Fla. R. Civ. P. 280(b)(5), and an in camera
review of the documents specified below, together with an award of attorney's fees and costs,
and in support thereof would show as follows:
SUMMARY OF ARGUMENT
On or about February 23, 2011, Edwards, in response to several orders entered by Judge
Raymond Ray in the Bankruptcy Court, filed a one hundred and fifty-nine (159) page privilege
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log, claiming that over two thousand (2,000) documents are privileged) This is Edwards'
second privilege log that blatantly fails to meet the requirements for a legally sufficient privilege
log under Fla. R. Civ. P. 1.280 (b)(5), as interpreted by the Fourth District Court of Appeal in
TIG Ins. Corp. v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001). In addition, although the
Special Master required a master list of names contained in the privilege log, a description of the
recipients of the documents, and identification of the individuals who received blind copies,
Edwards failed to provide the names of the individuals who were copied directly or who received
blind copies, and many recipients are insufficiently identified only as "Attorneys at RRA,"
"Staff," and "RRA Personnel.i 2 Edwards' gross failure to comply with Fla. R. Civ. P.
1.280(b)(5) prevents the Plaintiff and the Court from determining whether Edwards has made
any valid privilege assertions and results in a waiver of the privileges claimed. Edwards has not
provided sufficient descriptions of the documents to determine if the privilege(s) claimed are
valid. Finally, Edwards claims privileges that do not exist under Florida law.
ARGUMENT
I. REQUIREMENTS FOR A PRIVILEGE LOG
The requirements for a privilege log in Florida are set forth in Fla. R. Civ. P. 1.280(b)(5),
which provides as follows (emphasis added):
Edwards' privilege log is being filed contemporaneous with the filing of the subject
motion. For ease of reference, excerpts from the log are attached hereto as exhibits.
2After Epstein's Motion to Compel was heard on August 4, 2010, the Bankruptcy Court
entered at least four (4) orders directing Edwards to prepare a privilege log, the last of which
required the privilege log to be completed by January 31, 2011. The first log, served on January
26, 2011, was in woeful noncompliance with the TIG requirements. On February 23, 2011,
another log was served by Edwards which again patently failed to comply with TIG
requirements. The February 23, 2011 log is the subject of the instant motion.
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Claims of Privilege or Trial Protection Materials. When a party
withholds information otherwise discoverable under these rules by
claiming that it is privileged or subject to protection as trial
preparation material, the party shall make the claim expressly and
shall describe the nature of the documents, communications, or
things not produced or disposed in a manner that, without
revealing information itself privileged, or protected, will enable
other parties to assess the applicability of the privilege or
protection.
The key case in the Fourth District construing Fla. R. Civ. P. 1.280(b)(5) is TIG Ins.
Corp., 799 So. 2d 339, in which the Fourth District Court of Appeal denied a petition for a writ
of certiorari seeking review of an order requiring TIG, the homeowner's insurer, to produce
documents for which objections on the basis of attorney-client and work-product privileges were
made.
The Fourth District noted in TIG that Rule 1.280(b)(5) is identical to its federal
counterpart, Fed. R. Civ. P. 26(b)(5), whose Advisory Committee Notes state that "to withhold
materials without such notice is contrary to the rule, subjects the party to sanctions under rule
37(b)(2) and may be viewed as a waiver of the privilege or protection." 799 So. 2d at 340. The
TIG court further observed that Local Rule 26.1(G)(3)(b), of the United States District Court,
Southern District of Florida, spelled out the requirements for a valid privilege log, id. at 341:
Where a claim of privilege is asserted in objecting to any
interrogatory or document demand, or sub-part thereof, and an
answer is not provided on the basis of such assertion:
(i) The attorney asserting the privilege shall in the objection to the
interrogatory or document demand, or sub-part thereof, identify the
nature of the privilege (including work product) which is being
claimed and if the privilege is being asserted in connection with a
claim or defense governed by state law, indicate the state's
privilege rule being invoked; and
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(ii) The following information shall be provided in the objection,
unless divulgence of such information would cause disclosure of
the allegedly privileged information:
(A) For documents: (1) the type of document; (2) general subject
matter of the document; (3) the date of the document; (4) such
other information as is sufficient to identify the document for a
subpoena duces tecum, including, where appropriate, the author of
the document, the addressee of the document, and, where not
apparent, the relationship of the author and addressee to each other.
• • •
The Fourth District also quoted with approval from Abbott Laboratories v. Alpha
Therapeutic Corp., 2000 U.S. Dist. LEXIS 20834, at *13 (N.D. III. Dec. 14, 2000), in which the
court stated that a privilege log should:
describe the document's subject matter, purpose for its production,
and a specific explanation of why the document is privileged or
immune from discovery. These categories, especially this last
category, must be sufficiently detailed to allow the court to
determine whether the discovery opponent has discharged its
burden of establishing the requirements expounded upon in the
foregoing discussion. Accordingly, descriptions such as 'letter re
claim,' analysis of claim,' or 'report in anticipation of
litigation'--with which we have grown all too familiar--will be
insufficient. This may be burdensome, but it will provide a more
accurate evaluation of a discovery opponent's claims and takes into
consideration the fact that there are no presumptions operating in
the discovery opponent's favor. Any failure to comply with these
directions will result in a finding that the plaintiff-discovery
opponents have failed to meet their burden of establishing the
applicability of the privilege. (Citations omitted)
Thus, a party invoking a privilege "must...provide sufficient
information to enable other parties to evaluate the applicability of
the claimed privilege or protection." Hoot Winc, LLC v. KIM
McGladrey Fin. Process Outsourcing LLC, 2009 U.S. Dist.
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LEXIS 103045, at *9 (S.D. Cal. Nov. 4, 2009) (quoting Advisory
Committee Notes to Rule 26(b)(5)).3
TIG, 799 So. 2d at 341.
II. EDWARDS' PRIVILEGE LOG VIOLATES FLA. R.
CIV. P. 1.280(b)(5) AND THE TIG REQUIREMENTS
Edwards' privilege log clearly violates the requirements of Florida law, and is insufficient
on its face, as first evidenced by Edwards' one hundred and ninety-one (191) attempts to shield
documents from or to an unnamed "confidential source," especially for documents described as
"Litigation Strategy." See Composite Exhibit A as an example.
Second, and no less outrageous, is Edwards' use in approximately 101 â–ºog entries for
"senders" and "recipients" of the generic terms "attorney and staff," "litigation," "RRA
personnel," and "unknown staff attorneys at RRA." Such generic terms do not meet the TIG
requirements. See Composite Exhibit B as an example. Edwards' numerous references to
unnamed "Attorneys at RRA" are patently inappropriate, if not disingenuous, preventing in each
instance a necessary determination as to whether Edwards has validly invoked a privilege.
Without identification of the particular RRA attorney as the sender or recipient, it is impossible
3 See also Evans v. United Fire & Cas. Ins. Co., 2007 U.S. Dist. LEXIS 58578, at *9
(E.D. La. Aug. 9, 2007) ("United has provided a privilege log, but it is insufficient on its face.
Rule 26(b)(5) requires such a log to 'describe the nature of the documents, communications, or
things not produced or disclosed in a manner that, without revealing information itself privileged
or protected, will enable other parties to assess the applicability of the privilege or protection.' ");
Caplan v. Fellheimer Eichen Braverman & Kaskey, 162 F.R.D. 490, 492 (E.D. Pa. 1995) (party's
failure to explain nature of the assertedly privileged communication precluded court from
determining whether privilege applied); Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 664
(S.D. Ind. 1991) (requiring the log to list, for each separate document, the authors and their
capacities, the recipients (including copy recipients) and their capacities, the subject matter of the
document, the purpose for its production, and a detailed, specific explanation of why the
document is privileged or immune from discovery).
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to determine whether Edwards can properly shield the materials from disclosure. Such
non-disclosure strongly suggests a deliberate effort by Edwards to prevent the disclosure of
documents to and from Scott Rothstein, who is rarely named as a sender or recipient.
Third, Edwards' privilege log fails to indicate whether the documents were copied or
distributed to third parties, or whether blind copies were sent to third parties, which the Special
Master required. See Privilege Log generally.
Fourth, the privilege log fails to indicate whether the materials contain attachments.
"Where a privileged document has attachments, each attachment must individually satisfy the
criteria for falling within the privilege. Merely attaching something to a privileged document
will not, by itself, make the attachment privileged." Leonen v. Johns-Manville, 135 F.R.D. 94,
98 (D.N.J. 1990). Edwards is not entitled to invoke a privilege with respect to attachments
which themselves have not been described at all and lack the specificity required to determine
whether any privileges apply. It is hard to fathom that not one of these documents listed in the
log did not have an attachment. So the Court should order attachments produced.
Fifth, it is readily apparent that the privilege log fails to adequately describe over 200
assertedly privileged documents with descriptions such as "in re Epstein," "litigation strategy,"
"Meeting" and "FYI." Such shorthand, cryptic labels, with no description whatsoever of the
content of the materials, do not permit Epstein or the Court to begin to evaluate the applicability
of the privileges claimed by Edwards. TIG, 799 So. 2d at 341 (quoting Abbott Labs, 2000 U.S.
Dist. LEXIS 20834, at *13)("[D]escriptions such as 'letter re claim', 'analysis of claim' or 'report
in anticipation of litigation'.. . will be insufficient.").
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Sixth, Edwards' privilege log does not disclose the type of documents that are assertedly
privileged — e.g., email, letter, memo. See Privilege Log generally.
Finally, Edwards' privilege log is grossly inadequate and in blatant violation of Rule
1.280(b)(5), precluding Epstein and the Court from evaluating the applicability of the numerous
privileges claimed.
III. EDWARDS HAS NO VALID PRIVILEGE CLAIMS
A. Edwards Has No "Confidential Source" Privilege
Edwards objects to producing hundreds of pages of documents from or to a purportedly
"confidential source." See as an example Comp. Ex. A. There are at least one hundred and
ninety-one (191) entries in the privilege log that cite a "confidential source." There is no
Florida law, however, that gives Edwards the right to assert a privilege based upon "a
confidential source." Indeed, a "confidential source" privilege applies only with respect to
reporters protecting their sources. See, e.g., CBS v. Jackson, 578 So.2d 698, 700 (Fla. 1991)
(journalists have a qualified privilege against revealing confidential sources of information).
Edwards is not a reporter. Therefore, as a matter of settled law, Edwards has no valid objection
based upon a "confidential source" privilege. The Court should order these documents
produced forthwith.
B. "Privacy Rights"
Edwards objects to the production of approximately 930 documents on the ground that
they are "protected by privacy rights." See Privilege Log generally and Composite Exhibit C,
as an example. Remarkably, Edwards claims that approximately 75% of the documents listed
are shielded from discovery by unspecified "privacy rights." His objections, however, do not
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identify the specific "privacy" privilege or describe the person whose privacy interests are
assertedly at stake or the nature of the privacy interest at stake. Such amorphous "privacy
rights" are non-existent under Florida law. No valid privilege can be raised in an attempt to
protect purely generic "privacy rights."
Section 90.501, Fla. Stat., expressly states in relevant part that "[e]xcept as provided by
this chapter, any other statute, or the Constitution of the United States or of the State of Florida,
no person in a legal proceeding has a privilege to . . . (3) [defuse to produce . . . any writing."
Neither the Florida Evidence Code, other Florida statutes, or the Constitution, recognizes a
privilege for generic "privacy rights" or precludes the production of documents in a legal
proceeding based upon a general right of privacy. See La Roche v. Wainwright, 599 F.2d 722,
726 (5th Cir. Ha. 1979) (rejecting "fourteenth amendment rights to privacy" to protect marital
relationship: "[W]e see no persuasive reason to extend the right of privacy, based as it is on
"penumbras and emanations" of other more explicit constitutional rights, to evidentiary matters
protecting marital relationships, long thought to be uniquely within the regulatory province of the
individual states.").
In sum, Edwards cannot hide behind a sham privilege based on "privacy rights."
C. Attorney-Client Privilege Does Not Apply
to Non-Attorney-Client Communications
Edwards invokes the attorney-client privilege with respect to thousands of pages of
documents listed in 120 pages of his 159-page privilege log. See Privilege Log generally.
Significantly, the log describes only three of these documents as attorney-client communication.
See Exhibit D, Bates 02546-02547, 02809-02810, 02807-02808. There is no description or
information provided by Edwards to suggest that any of the other documents claimed to be
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subject to the attorney-client privilege, actually are. The following examples demonstrate
Edwards' utterly cavalier and improper invocation of the attorney client privilege: 1) Priscilla
Nascimento to "Attorneys at RRA" re: reserving a conference room; 2) Beth Williamson to
Bradley Edwards re: "Discussions about Brad's recovery"; and 3) Bradley Edwards to Carolyn
Edwards re: "Personal Convo between Brad and Mom" See Composite Exhibit E, as an
example. The attorney-client privilege applies only to communications between counsel and
client and cannot be asserted to block the discovery of communications that are not identified as
attorney-client communications. See, e.g.,, §90.502, Fla. Stat., Skorman v. Hovnanian of Florida,
Inc., 382 So. 2d 1376, 1378 (Ha. 4th DCA 1980). Accordingly, no attorney-client privilege
attaches to communications that have not been specifically identified by Edwards as
attorney-client communications.
In addition, with respect to the numerous communications or documents to which
Edwards has asserted the attorney-client privilege, Edwards must establish all of the following
elements: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to
whom the communication was made (a) is a member of a bar of a court, or his subordinate, and
(b) in connection with this communication is acting as a lawyer; (3) the communication relates to
a fact of which the attorney was informed (a) by his client (b) without the presence of strangers
(c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort;
and (4) the privilege has been (a) claimed and (b) not waived by the client. See § 90.502, Fla.
Stat.; State v. Rabin, 495 So. 2d 257, 60 (Fla. 3d DCA 1986). The attorney-client privilege
does not apply to communications between an attorney and a third party, or a person who is not a
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client. See State v. Rabin, 495 So. 2d at 260 (attorney-client privilege did not attach to
attorney's communication with client's ex-wife). The attorney-client privilege is waived if the
client voluntarily discloses the substance of the communication. See § 90.507, Fla. Stat.; Delap
v. State, 440 So. 2d 1242, 1247 (Fla. 1983) ("[W]hen a party himself ceases to treat the matter as
confidential, it loses its confidential character.").
Edwards' woefully inadequate privilege log does not provide sufficient information to
enable Epstein and the Court to determine the applicability of the attorney-client privilege to the
thousands of communications listed in the privilege log. The alleged client involved is not
disclosed with respect to each communication. The purpose of the document is not described.
The names of all recipients are not disclosed, preventing a determination as to whether the
attorney-client privilege was waived. No information is provided which would enable the
Court and Epstein to determine whether the communications were intended to be disclosed to
third parties or did not involve the giving of legal advice, in which case there is no privilege.
See, e.g., Watkins v. State, 516 So. 2d 1043, 1046 (Fla. 151 DCA 1987).
D. The Work Product Privilege Cannot Be
Determined From Edwards' Privilege Log
Forty years ago, the Florida Supreme Court, in Surf Drugs, Inc. v. Vermette, 236 So. 2d
108, 112 (Fla. 1970), explained what is covered by the work product privilege:
[T]hose documents, pictures, statements and diagrams which are to
be presented as evidence are not work products anticipated by the
rule for exemption from discovery. Personal views of the attorney
as to how and when to present evidence, his evaluation of its
relative importance, his knowledge of which witness will give
certain testimony, personal notes and records as to witnesses,
jurors, legal citations, proposed arguments, jury instructions,
diagrams and charts he may refer to at trial for his own
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convenience, but not to be used as evidence, come within the
general category of work product.
The work product doctrine protects documents and papers of an attorney or a party
prepared in anticipation of litigation, regardless of whether they pertain to confidential
communications between attorney and client. Fla. R. Civ. P. 1.280(b)(2). See Southern Bell
TeL & TeL Co. v. Deason, 632 So. 2d 1377 (Fla. 1994). Work product is a qualified immunity
from discovery. See DeBartolo-Aventlira, Inc. v. Hernandez, 638 So. 2d 988 (Fla. 3d DCA
1994). The work product privilege does not extend to materials intended for use as evidence at
trial. Northup v. Acken, 865 So. 2d 1267 (Fla. 2004).
Work product falls into two categories: 1) "fact" work product consisting of factual
information pertaining to a client's case that is prepared in anticipation of litigation or for trial by
another party; and 2) "opinion" work product, which includes all attorney's mental impressions,
opinions or conclusions about a client's case. The former is discoverable upon a showing of (a)
need for the materials to prepare the party's case, and (b) inability to obtain the substantial
equivalent of such materials without undue hardship. See, e.g., Metric Engineering, Inc. v.
Small, 861 So. 2d 1248, 1250 (Fla. 1st DCA 2003). The latter is subject to nearly absolute
immunity. See, e.g., Smith v. Fla. Power & Light Co., 632 So. 2d 696 (Fla. 3d DCA 1994).
A trial court is instructed "to make particularized findings in support of its determination
of which of the documents are, or are not, subject to the work product privilege." Dismas
Charities, Inc. v. Dobbs, 795 So. 2d 1038, 1039 (Ha. 4th DCA 2001). The party asserting the
privilege must prove that the materials constitute work product. See, e.g., Prudential Ins. Co. of
Am. v. Fla. Dep't of Ins., 694 So. 2d 771, 773-74 (Fla. 2d DCA 1997) (objecting party provided
affidavits stating that the documents were prepared in anticipation of litigation). See, e.g.,
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Lloyds Underwriters of London v. El-Ad Villagio Condo. Ass'n, 976 So. 2d 28 (Ha. 4th DCA
2008) (discovery order quashed where no in camera inspection was made). Thus, a trial court is
not required to protect materials from discovery if a party makes no affirmative showing, and
only makes "a blanket statement that these items were prepared in anticipation of litigation and
are protected from disclosure without presenting evidence to support the claim." Wal-Mart
Stores, Inc. v. Weeks, 696 So. 2d 855, 856-57 (Fla. 2d DCA 1997).
Once the party seeking the documents challenges non-production, the burden shifts to the
opposing party to establish that the materials were prepared in anticipation of litigation in which
case they are discoverable upon a showing that the former has need of the materials and cannot
obtain the equivalent without undue hardship. See, e.g., Tampa Med. Assoc., Inc. v. Estate of
Torres, 903 So. 2d 259, 263-64 (Ha. 2d DCA 2005).
Given the numerous violations on the face of Edwards' privilege log, including no
descriptions of the types of communications, inadequate descriptions of the content of the
communications, and no references to particular clients, Epstein and the Court have no way to
determine whether the work product privileges claimed are fact or opinion work product. See
Privilege Log generally. It is essential that sufficient information be provided by Edwards to
distinguish between fact and opinion work product. The need to ascertain which "facts" are
being protected is particularly critical given the testimony by Scott Rothstein of extensive fraud
at RRA, and Epstein's right to discover fact work product upon a showing of need.
E. Pooled, Joint Defense or Common Litigation
Interest Cannot Be Determined from the Privilege Log
Litigants who share "unified interests" may exchange privileged information to prepare
their case without losing the benefit of the attorney-client interest pursuant to the "joint defense,"
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"common interest" or "pooled information" exception. Visual Scene, Inc., v. Pilkington Bros.,
508 So. 2d 437, 440 (Fla. 3d DCA 1987). The exception has been recognized in the case of
co-defendants, co-parties to potential litigation, members of a class of plaintiffs pursuing
separate suits, and defendants in separate actions. Id. (citations omitted).
However, the joint defense privilege, more properly identified as the "common interest
rule," see generally Capra, The Attorney-Client Privilege In Common Representations, 20 Trial
Lawyers Quarterly, Summer 1989, at 20, has been described as an extension of the attorney
client privilege, Waller v. Financial Corp. of Am., 828 F.2d 579, 583 n.7 (9th Cir. 1987). It
serves to protect the confidentiality of communications passing from one party to the attorney for
another party where a joint defense effort or strategy has been decided upon and undertaken by
the parties and their respective counsel. See United States v. Bay State Ambulance and Hosp.
Rental Serv., 874 F.2d 20, 28 (1st Cir. 1989). Only those communications made in the course
of an ongoing common enterprise and intended to further the enterprise are protected.
Eisenberg v. Gagnon, 766 F.2d 770, 787 (3d Cir.), cert. denied, 474 U.S. 946, 106 S. Ct. 342, 88
L. Ed. 2d 290 (1985); Matter of Bevil!, Bresler & Schulman Asset Management Corp., 805 F.2d
120 (3d Cir. 1986). United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. N.Y. 1989)
(emphasis added). Thus, "parties seeking to invoke the exception must establish that they
agreed to engage in a joint effort and to keep the shared information confidential from outsiders."
Ken's Foods, Inc. v. Ken's Steak House, Inc., 213 F.R.D. 89, 93 (D. Mass. 2002). See also
United States v. Sawyer, 878 F. Supp. 295, 297 (D. Mass. 1995) (despite similar interests
between employer and employee, there was insufficient evidence that communications were
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made during the course of a joint defense effort; proponent could not establish the time frame of
the purported agreement or the acts creating and/or terminating the agreement).
Edwards' privilege log does not establish that the communications listed were made
during the course of an "ongoing common enterprise," does not establish relevant time frames,
and does not establish that "a joint defense effort or strategy has been decided upon and
undertaken by the parties and their respective counsel." North River Ins. Co. v. Columbia
Casualty Co., 1995 U.S. Dist. LEXIS 53, at *7 (S.D.N.Y. Jan. 5, 1995) (citation and quotation
omitted).
Given the critical gaps in Edwards' privilege log, it is impossible to determine whether
Edwards can properly invoke the "common interest" doctrine to preclude discovery.
IV. EDWARDS' FAILURE TO SUPPLY AN ADEQUATE
LOG WAIVES THE PRIVILEGES CLAIMED AND
SUPPORTS SANCTIONS AGAINST EDWARDS
It is settled that the failure to supply a privilege log which complies with Florida law
results in the waiver of a privilege under Florida law. TIG, 799 So. 2d at 341 ("Any failure to
comply with these directions will result in a finding that the plaintiff-discovery opponents have
failed to meet their burden of establish[ing] the applicability of the privilege."). The TIG court
noted that Rule 1.280(B)(5) "uses mandatory language, and federal courts have found waiver
where the federal rule was violated." Id. (citing cases). The TIG court concluded that there was
no departure from the essential requirements of the law in compelling production based upon a
privilege waiver: "Because the trial court did not have the benefit of specific descriptions of the
documents, we assume that the court found a waiver." Id. at 342. See also Century Bus.
Credit Corp. v. Fitness Innovations & Techs., Inc., 906 So. 2d 1156. 1157 (Fla. 4th DCA 2005)
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(the court denied a petition for certiorari directed to an order finding a waiver of privilege in
regard to the production of documents because the petitioner filed a privilege log which was
"completely inadequate"); Kaye Scholer LLP v. Zalis, 878 So. 2d 447, 449 (Fla. 3d DCA 2004)
(the purpose of the privilege log requirement is "to identify materials which might be subject to a
privilege or work product protection so that a court can rule on the 'applicability of the privilege
or protection' prior to trial...Failure to comply with the requirements of Rule 1.280(6)(5) results
in the waiver of any attorney-client and work-product privileges."); Omega Consulting Group v.
Templeton, 805 So. 2d 1058, 1060 (Fla. 4th DCA 2002) (noting that where a privilege log "filed
by the corporations did not contain sufficient detail to comply with the requirements of Florida
Rule of Civil Procedure 1.280(b)(5)," the attorney-client privilege may be waived).
Edwards has had ample opportunities to file a proper privilege log, and has declined to do
so. Given his blatant violation of Rule 1.280(b)(5), the magnitude of the deficiencies in his
privilege log, and his cavalier invocation of numerous clearly inapplicable and/or non-existent
privileges, this Court should enter an order finding a waiver and requiring production of the
documents requested. See TIG.
In the alternative, the Court should compel Edwards to produce a privilege log that
strictly complies with TIG and the requirements of Rule 1.280 in order that Epstein and the Court
can reasonably determine whether any valid privileges have been asserted and were not waived.
At a minimum, and as soon as convenient, the Court should conduct an in camera
inspection of the documents referenced in ¶¶ 20, 22-4 of the Corrected Second Amended
Complaint and determine whether any of the privileges asserted by Edwards to block the
production of these highly relevant materials are valid or have been waived. These materials -
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approximately thirty (30) emails — were sent to or from Edwards during the critical period of
May to October, 2009, when the Ponzi scheme was imploding. The critical nature of these
documents is vividly demonstrated by Rothstein's testimony during his recent deposition that he
had asked Edwards or Adler to specifically set aside a flight manifest for an Epstein private jet.
(Tr. Rothstein Depo 12/21/11 at 2278). Rothstein further testified that he showed boxes with
Epstein files to the Discala investors in his office, disclosing the actual names of the parties "as a
way of me attempting to induce them to invest further." (Tr. Rothstein Depo 12/20/11 at 1917;
see also Tr. 12/21/11 at 2278). Rothstein explained with regard to Edwards' lawsuits that "this
was a big ticket because there was the defendant and he's a wealthy guy" and was associated with
public figures who did not want their names dragged through the mud. (Tr. Rothstein Depo
12/21/11 at 2283).4 'thus, because the documents specifically referenced in the Corrected
Second Amended Complaint are critical to the continued deposition of Rothstein in June, 2012,
an in camera inspection should be conducted of those documents prior to that time, although
Epstein does not hereby waive the right to an in camera review with respect to any of the other
materials referenced in the Privilege Log.
Finally, the actual prejudice to and impact on Epstein by Edwards' willful and continued
non-compliance is palpable. Epstein has been prejudiced because he has not been able to
conduct critical discovery necessary for the prosecution of his claims, and necessary for
It is important to note that in light of Rothstein's testimony, potentially relevant entries
during this time frame — including, Edwards to "Attorneys at RRA" re: "Flight logs for Epstein,"
Bradley Edwards to "Attorneys at RRA" re: "Subpoena Clinton," Bradley Edwards to "Attorneys
at RRA" re: "Investigation Epstein's planes," Bradley Edwards to "Attorneys at RRA" re:
"Epstein meeting," and Priscilla Nascimento to ""Attorneys at RRA" re: "Epstein's Conference
Room Reserved" — raise disturbing questions as to whether the "Attorneys at RRA" designation
used by Edwards in his log is meant to disguise communications to Rothstein.
16
EFTA01082242
DRAFT
Epstein v. Rothstein 21anTEMT
Case No. 502009CA040800XXXXMB/Div. AG
opposition to Edwards' summary judgment motion. Epstein has spent tens of thousands of
dollars in attorney's fees trying to obtain the requested documents from Edwards and address
privilege log issues. Sanctions should be imposed on Edwards to prevent unfair prejudice to
Epstein and to insure the integrity of the discovery process. See Aztec Steel Company v.
Florida Steel Corp., 691 F. 2d 480, 482 (11th Cir.1982).
In sum, pursuant to Fla. R. Civ. P. 1.280, this Court should enter an Order finding that
Edwards' privilege claims are waived, requiring Edwards to produce the documents requested by
Epstein, and requiring Edwards to pay the reasonable expenses incurred by Epstein, including
attorney's fees, costs, payments to the Special Master caused by Edwards' failure to provide a
timely and legally sufficient privilege log, and granting such other and further relief as the Court
deems necessary and proper.
Respectfully submitted,
Joseph L. Ackerman, Jr.
Florida Bar No. 235954
FOWLER WHITE BURNE'FT, P.A.
901 Phillips Point West
777 South Flagler Drive
West Palm Beach Florida 33401
Telephone: 1
Facsimile:
Attorneys for Plaintiff Jeffrey Epstein
and
Christopher E. Knight
Florida Bar. No. 607363
FOWLER WHITE BURNETT, P.A.
Espirito Santo Plaza, 14th Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: I
Facsimile:
Attorneys for Plaintiff Jeffrey Epstein
17
EFTA01082243
DRAFT
Epstein v. Rothstein 2gla2Fair PC
Case No. 502009CA040800XXXXMB/Div. AG
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via
electronic mail and U.S. Mail on this day of February, 2012 to: Jack Scarola, Esq.,
Searcy Denney Scarola Barnhart & Shipley, P.A., 2139 Palm Beach Lakes Blvd., West Palm
Beach, FL 33409; Jack Alan Goldberger, Esq., Atterbury, Goldberger & Wciss, P.A., 250
Australian Ave. South, Suite 1400, West Palm Beach, FL 33401-5012; and Marc S. Nurik, Esq.,
Law Offices of Marc S. Nurik, One East Broward Blvd., Suite 700, Fort Lauderdale, FL 33301.
Joseph L. Ackerman, Jr.
18
EFTA01082244
Privilege Log — Dated 2-23-2011
Farmer.Jaffe, Weissing, Edwards, Fistos & Lehrman
BATES DATE TO FROM DESCRIPTION OBJECTION
discovery of admissible evidence
05693-05695 05/28/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05698 08/21/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05706-05709 05/28/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05720-05721 05/29/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05738-05739 05/29/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05743-05745 05/29/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05754 08/03/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05759-05762 06/01/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Prlv.; not reasonably calculated to lead to
discovery of admissible evidence
05765-05768 06/23/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05771-05773 06/03/2009 Bradley Edwards Confidential Source Additional Information RE: W/P Priv.; not reasonably calculated to lead to
Epstein Molestations discovery of admissible evidence
05777-05779 06/03/2009 Bradley Edwards Confidential Source Additional Information RE: W/P Priv.; not reasonably calculated to lead to
Epstein Molestations discovery of admissible evidence
05784-05786 06/03/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05791-05794 06/03/2009 Bradley Edwards Confidential Source Additional Information RE: W/P Priv.; not reasonably calculated to lead to
Epstein Molestations discovery of admissible evidence
05803 07/22/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05836-05837 07/08/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05842-05843 07/08/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
49
EFTA01082245
Privilege Log — Dated 2-23-2011
Farmer, Jaffe. Weissing, Edwards, Fistos & Lehrman
BATES DATE TO FROM DESCRIPTION OBJECTION
05848 07/28/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05852-05853 07/29/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05857-05858 07/31/2009 Bradley Edwards Confidential Source Litigation St
2/7112 6:30 PM
IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION AG
CASE NO. 502009CA040800XXXXMB
Judge David F. Crow
JEFFREY EPSTEIN,
Plaintiff/Counter-Defendant,
v.
SCO"IT ROTIiSTEIN, individually, and
BRADLEY J. EDWARDS, individually,
Defendants/Counter-Plaintiffs.
PLAINTIFF JEFFREY EPSTEIN'S MOTION TO COMPEL
PRODUCTION OF DOCUMENTS FROM DEFENDANT BRADLEY EDWARDS
AND FOR SANCTIONS
Plaintiff, Jeffrey Epstein, by and through his undersigned counsel, hereby respectfully
seeks the entry of an Order compelling Defendant Bradley Edwards to produce the documents
listed in Edwards' privilege log, or, in the alternative, the entry of an Order compelling Edwards
to serve a privilege log that fully complies with Fla. R. Civ. P. 280(b)(5), and an in camera
review of the documents specified below, together with an award of attorney's fees and costs,
and in support thereof would show as follows:
SUMMARY OF ARGUMENT
On or about February 23, 2011, Edwards, in response to several orders entered by Judge
Raymond Ray in the Bankruptcy Court, filed a one hundred and fifty-nine (159) page privilege
EFTA01082227
DRAFT
Epstein v. Rothstein 22a 2EMT
Case No. 502009CA040800XXXXMI3/Div. AG
log, claiming that over two thousand (2,000) documents are privileged) This is Edwards'
second privilege log that blatantly fails to meet the requirements for a legally sufficient privilege
log under Fla. R. Civ. P. 1.280 (b)(5), as interpreted by the Fourth District Court of Appeal in
TIG Ins. Corp. v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001). In addition, although the
Special Master required a master list of names contained in the privilege log, a description of the
recipients of the documents, and identification of the individuals who received blind copies,
Edwards failed to provide the names of the individuals who were copied directly or who received
blind copies, and many recipients are insufficiently identified only as "Attorneys at RRA,"
"Staff," and "RRA Personnel.i 2 Edwards' gross failure to comply with Fla. R. Civ. P.
1.280(b)(5) prevents the Plaintiff and the Court from determining whether Edwards has made
any valid privilege assertions and results in a waiver of the privileges claimed. Edwards has not
provided sufficient descriptions of the documents to determine if the privilege(s) claimed are
valid. Finally, Edwards claims privileges that do not exist under Florida law.
ARGUMENT
I. REQUIREMENTS FOR A PRIVILEGE LOG
The requirements for a privilege log in Florida are set forth in Fla. R. Civ. P. 1.280(b)(5),
which provides as follows (emphasis added):
Edwards' privilege log is being filed contemporaneous with the filing of the subject
motion. For ease of reference, excerpts from the log are attached hereto as exhibits.
2After Epstein's Motion to Compel was heard on August 4, 2010, the Bankruptcy Court
entered at least four (4) orders directing Edwards to prepare a privilege log, the last of which
required the privilege log to be completed by January 31, 2011. The first log, served on January
26, 2011, was in woeful noncompliance with the TIG requirements. On February 23, 2011,
another log was served by Edwards which again patently failed to comply with TIG
requirements. The February 23, 2011 log is the subject of the instant motion.
2
EFTA01082228
DRAFT
Epstein v. Rothstein ariaEM PA
Case No. 502009CA040800XXXXMB/Div. AG
Claims of Privilege or Trial Protection Materials. When a party
withholds information otherwise discoverable under these rules by
claiming that it is privileged or subject to protection as trial
preparation material, the party shall make the claim expressly and
shall describe the nature of the documents, communications, or
things not produced or disposed in a manner that, without
revealing information itself privileged, or protected, will enable
other parties to assess the applicability of the privilege or
protection.
The key case in the Fourth District construing Fla. R. Civ. P. 1.280(b)(5) is TIG Ins.
Corp., 799 So. 2d 339, in which the Fourth District Court of Appeal denied a petition for a writ
of certiorari seeking review of an order requiring TIG, the homeowner's insurer, to produce
documents for which objections on the basis of attorney-client and work-product privileges were
made.
The Fourth District noted in TIG that Rule 1.280(b)(5) is identical to its federal
counterpart, Fed. R. Civ. P. 26(b)(5), whose Advisory Committee Notes state that "to withhold
materials without such notice is contrary to the rule, subjects the party to sanctions under rule
37(b)(2) and may be viewed as a waiver of the privilege or protection." 799 So. 2d at 340. The
TIG court further observed that Local Rule 26.1(G)(3)(b), of the United States District Court,
Southern District of Florida, spelled out the requirements for a valid privilege log, id. at 341:
Where a claim of privilege is asserted in objecting to any
interrogatory or document demand, or sub-part thereof, and an
answer is not provided on the basis of such assertion:
(i) The attorney asserting the privilege shall in the objection to the
interrogatory or document demand, or sub-part thereof, identify the
nature of the privilege (including work product) which is being
claimed and if the privilege is being asserted in connection with a
claim or defense governed by state law, indicate the state's
privilege rule being invoked; and
3
EFTA01082229
DRAFT
Epstein v. Rothstein 28na rPcrsi
Case No. 502009CA040800VOCXMB/Div. AG
(ii) The following information shall be provided in the objection,
unless divulgence of such information would cause disclosure of
the allegedly privileged information:
(A) For documents: (1) the type of document; (2) general subject
matter of the document; (3) the date of the document; (4) such
other information as is sufficient to identify the document for a
subpoena duces tecum, including, where appropriate, the author of
the document, the addressee of the document, and, where not
apparent, the relationship of the author and addressee to each other.
• • •
The Fourth District also quoted with approval from Abbott Laboratories v. Alpha
Therapeutic Corp., 2000 U.S. Dist. LEXIS 20834, at *13 (N.D. III. Dec. 14, 2000), in which the
court stated that a privilege log should:
describe the document's subject matter, purpose for its production,
and a specific explanation of why the document is privileged or
immune from discovery. These categories, especially this last
category, must be sufficiently detailed to allow the court to
determine whether the discovery opponent has discharged its
burden of establishing the requirements expounded upon in the
foregoing discussion. Accordingly, descriptions such as 'letter re
claim,' analysis of claim,' or 'report in anticipation of
litigation'--with which we have grown all too familiar--will be
insufficient. This may be burdensome, but it will provide a more
accurate evaluation of a discovery opponent's claims and takes into
consideration the fact that there are no presumptions operating in
the discovery opponent's favor. Any failure to comply with these
directions will result in a finding that the plaintiff-discovery
opponents have failed to meet their burden of establishing the
applicability of the privilege. (Citations omitted)
Thus, a party invoking a privilege "must...provide sufficient
information to enable other parties to evaluate the applicability of
the claimed privilege or protection." Hoot Winc, LLC v. KIM
McGladrey Fin. Process Outsourcing LLC, 2009 U.S. Dist.
4
EFTA01082230
DRAFT
Epstein v. Rothstein Varia2ERCitl
Case No. 502009CA040800XXXXMB/Div. AG
LEXIS 103045, at *9 (S.D. Cal. Nov. 4, 2009) (quoting Advisory
Committee Notes to Rule 26(b)(5)).3
TIG, 799 So. 2d at 341.
II. EDWARDS' PRIVILEGE LOG VIOLATES FLA. R.
CIV. P. 1.280(b)(5) AND THE TIG REQUIREMENTS
Edwards' privilege log clearly violates the requirements of Florida law, and is insufficient
on its face, as first evidenced by Edwards' one hundred and ninety-one (191) attempts to shield
documents from or to an unnamed "confidential source," especially for documents described as
"Litigation Strategy." See Composite Exhibit A as an example.
Second, and no less outrageous, is Edwards' use in approximately 101 â–ºog entries for
"senders" and "recipients" of the generic terms "attorney and staff," "litigation," "RRA
personnel," and "unknown staff attorneys at RRA." Such generic terms do not meet the TIG
requirements. See Composite Exhibit B as an example. Edwards' numerous references to
unnamed "Attorneys at RRA" are patently inappropriate, if not disingenuous, preventing in each
instance a necessary determination as to whether Edwards has validly invoked a privilege.
Without identification of the particular RRA attorney as the sender or recipient, it is impossible
3 See also Evans v. United Fire & Cas. Ins. Co., 2007 U.S. Dist. LEXIS 58578, at *9
(E.D. La. Aug. 9, 2007) ("United has provided a privilege log, but it is insufficient on its face.
Rule 26(b)(5) requires such a log to 'describe the nature of the documents, communications, or
things not produced or disclosed in a manner that, without revealing information itself privileged
or protected, will enable other parties to assess the applicability of the privilege or protection.' ");
Caplan v. Fellheimer Eichen Braverman & Kaskey, 162 F.R.D. 490, 492 (E.D. Pa. 1995) (party's
failure to explain nature of the assertedly privileged communication precluded court from
determining whether privilege applied); Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 664
(S.D. Ind. 1991) (requiring the log to list, for each separate document, the authors and their
capacities, the recipients (including copy recipients) and their capacities, the subject matter of the
document, the purpose for its production, and a detailed, specific explanation of why the
document is privileged or immune from discovery).
5
EFTA01082231
DRAFT
Epstein v. Rothstein vallia2EtairPcg
Case No. 502009CA040800XXXXMA/Div. AG
to determine whether Edwards can properly shield the materials from disclosure. Such
non-disclosure strongly suggests a deliberate effort by Edwards to prevent the disclosure of
documents to and from Scott Rothstein, who is rarely named as a sender or recipient.
Third, Edwards' privilege log fails to indicate whether the documents were copied or
distributed to third parties, or whether blind copies were sent to third parties, which the Special
Master required. See Privilege Log generally.
Fourth, the privilege log fails to indicate whether the materials contain attachments.
"Where a privileged document has attachments, each attachment must individually satisfy the
criteria for falling within the privilege. Merely attaching something to a privileged document
will not, by itself, make the attachment privileged." Leonen v. Johns-Manville, 135 F.R.D. 94,
98 (D.N.J. 1990). Edwards is not entitled to invoke a privilege with respect to attachments
which themselves have not been described at all and lack the specificity required to determine
whether any privileges apply. It is hard to fathom that not one of these documents listed in the
log did not have an attachment. So the Court should order attachments produced.
Fifth, it is readily apparent that the privilege log fails to adequately describe over 200
assertedly privileged documents with descriptions such as "in re Epstein," "litigation strategy,"
"Meeting" and "FYI." Such shorthand, cryptic labels, with no description whatsoever of the
content of the materials, do not permit Epstein or the Court to begin to evaluate the applicability
of the privileges claimed by Edwards. TIG, 799 So. 2d at 341 (quoting Abbott Labs, 2000 U.S.
Dist. LEXIS 20834, at *13)("[D]escriptions such as 'letter re claim', 'analysis of claim' or 'report
in anticipation of litigation'.. . will be insufficient.").
6
EFTA01082232
DRAFT
Epstein v. Rothstein 2frla2Edtt irPg
Case No. 502009CA040800XXXXMB/Div. AG
Sixth, Edwards' privilege log does not disclose the type of documents that are assertedly
privileged — e.g., email, letter, memo. See Privilege Log generally.
Finally, Edwards' privilege log is grossly inadequate and in blatant violation of Rule
1.280(b)(5), precluding Epstein and the Court from evaluating the applicability of the numerous
privileges claimed.
III. EDWARDS HAS NO VALID PRIVILEGE CLAIMS
A. Edwards Has No "Confidential Source" Privilege
Edwards objects to producing hundreds of pages of documents from or to a purportedly
"confidential source." See as an example Comp. Ex. A. There are at least one hundred and
ninety-one (191) entries in the privilege log that cite a "confidential source." There is no
Florida law, however, that gives Edwards the right to assert a privilege based upon "a
confidential source." Indeed, a "confidential source" privilege applies only with respect to
reporters protecting their sources. See, e.g., CBS v. Jackson, 578 So.2d 698, 700 (Fla. 1991)
(journalists have a qualified privilege against revealing confidential sources of information).
Edwards is not a reporter. Therefore, as a matter of settled law, Edwards has no valid objection
based upon a "confidential source" privilege. The Court should order these documents
produced forthwith.
B. "Privacy Rights"
Edwards objects to the production of approximately 930 documents on the ground that
they are "protected by privacy rights." See Privilege Log generally and Composite Exhibit C,
as an example. Remarkably, Edwards claims that approximately 75% of the documents listed
are shielded from discovery by unspecified "privacy rights." His objections, however, do not
7
EFTA01082233
DRAFT
Epstein v. Rothstein 2472 Edtlr71
Case No. 502009CA040800X)(XXMB/Div. AG
identify the specific "privacy" privilege or describe the person whose privacy interests are
assertedly at stake or the nature of the privacy interest at stake. Such amorphous "privacy
rights" are non-existent under Florida law. No valid privilege can be raised in an attempt to
protect purely generic "privacy rights."
Section 90.501, Fla. Stat., expressly states in relevant part that "[e]xcept as provided by
this chapter, any other statute, or the Constitution of the United States or of the State of Florida,
no person in a legal proceeding has a privilege to . . . (3) [defuse to produce . . . any writing."
Neither the Florida Evidence Code, other Florida statutes, or the Constitution, recognizes a
privilege for generic "privacy rights" or precludes the production of documents in a legal
proceeding based upon a general right of privacy. See La Roche v. Wainwright, 599 F.2d 722,
726 (5th Cir. Ha. 1979) (rejecting "fourteenth amendment rights to privacy" to protect marital
relationship: "[W]e see no persuasive reason to extend the right of privacy, based as it is on
"penumbras and emanations" of other more explicit constitutional rights, to evidentiary matters
protecting marital relationships, long thought to be uniquely within the regulatory province of the
individual states.").
In sum, Edwards cannot hide behind a sham privilege based on "privacy rights."
C. Attorney-Client Privilege Does Not Apply
to Non-Attorney-Client Communications
Edwards invokes the attorney-client privilege with respect to thousands of pages of
documents listed in 120 pages of his 159-page privilege log. See Privilege Log generally.
Significantly, the log describes only three of these documents as attorney-client communication.
See Exhibit D, Bates 02546-02547, 02809-02810, 02807-02808. There is no description or
information provided by Edwards to suggest that any of the other documents claimed to be
8
EFTA01082234
DRAFT
Epstein v. Rothstein 22a2Edkjgrig
Case No. 502009CA040800XXXXMB/Div. AG
subject to the attorney-client privilege, actually are. The following examples demonstrate
Edwards' utterly cavalier and improper invocation of the attorney client privilege: 1) Priscilla
Nascimento to "Attorneys at RRA" re: reserving a conference room; 2) Beth Williamson to
Bradley Edwards re: "Discussions about Brad's recovery"; and 3) Bradley Edwards to Carolyn
Edwards re: "Personal Convo between Brad and Mom" See Composite Exhibit E, as an
example. The attorney-client privilege applies only to communications between counsel and
client and cannot be asserted to block the discovery of communications that are not identified as
attorney-client communications. See, e.g.,, §90.502, Fla. Stat., Skorman v. Hovnanian of Florida,
Inc., 382 So. 2d 1376, 1378 (Ha. 4th DCA 1980). Accordingly, no attorney-client privilege
attaches to communications that have not been specifically identified by Edwards as
attorney-client communications.
In addition, with respect to the numerous communications or documents to which
Edwards has asserted the attorney-client privilege, Edwards must establish all of the following
elements: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to
whom the communication was made (a) is a member of a bar of a court, or his subordinate, and
(b) in connection with this communication is acting as a lawyer; (3) the communication relates to
a fact of which the attorney was informed (a) by his client (b) without the presence of strangers
(c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii)
assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort;
and (4) the privilege has been (a) claimed and (b) not waived by the client. See § 90.502, Fla.
Stat.; State v. Rabin, 495 So. 2d 257, 60 (Fla. 3d DCA 1986). The attorney-client privilege
does not apply to communications between an attorney and a third party, or a person who is not a
9
EFTA01082235
DRAFT
Epstein v. Rothstein 2gAYERCA
Case No. 502009CA040800XXXXMB/Div. AG
client. See State v. Rabin, 495 So. 2d at 260 (attorney-client privilege did not attach to
attorney's communication with client's ex-wife). The attorney-client privilege is waived if the
client voluntarily discloses the substance of the communication. See § 90.507, Fla. Stat.; Delap
v. State, 440 So. 2d 1242, 1247 (Fla. 1983) ("[W]hen a party himself ceases to treat the matter as
confidential, it loses its confidential character.").
Edwards' woefully inadequate privilege log does not provide sufficient information to
enable Epstein and the Court to determine the applicability of the attorney-client privilege to the
thousands of communications listed in the privilege log. The alleged client involved is not
disclosed with respect to each communication. The purpose of the document is not described.
The names of all recipients are not disclosed, preventing a determination as to whether the
attorney-client privilege was waived. No information is provided which would enable the
Court and Epstein to determine whether the communications were intended to be disclosed to
third parties or did not involve the giving of legal advice, in which case there is no privilege.
See, e.g., Watkins v. State, 516 So. 2d 1043, 1046 (Fla. 151 DCA 1987).
D. The Work Product Privilege Cannot Be
Determined From Edwards' Privilege Log
Forty years ago, the Florida Supreme Court, in Surf Drugs, Inc. v. Vermette, 236 So. 2d
108, 112 (Fla. 1970), explained what is covered by the work product privilege:
[T]hose documents, pictures, statements and diagrams which are to
be presented as evidence are not work products anticipated by the
rule for exemption from discovery. Personal views of the attorney
as to how and when to present evidence, his evaluation of its
relative importance, his knowledge of which witness will give
certain testimony, personal notes and records as to witnesses,
jurors, legal citations, proposed arguments, jury instructions,
diagrams and charts he may refer to at trial for his own
10
EFTA01082236
DRAFT
Epstein v. Rothstein 21
E12Ecdr71
Case No. 502009CA040800XXXXMB/Div. AG
convenience, but not to be used as evidence, come within the
general category of work product.
The work product doctrine protects documents and papers of an attorney or a party
prepared in anticipation of litigation, regardless of whether they pertain to confidential
communications between attorney and client. Fla. R. Civ. P. 1.280(b)(2). See Southern Bell
TeL & TeL Co. v. Deason, 632 So. 2d 1377 (Fla. 1994). Work product is a qualified immunity
from discovery. See DeBartolo-Aventlira, Inc. v. Hernandez, 638 So. 2d 988 (Fla. 3d DCA
1994). The work product privilege does not extend to materials intended for use as evidence at
trial. Northup v. Acken, 865 So. 2d 1267 (Fla. 2004).
Work product falls into two categories: 1) "fact" work product consisting of factual
information pertaining to a client's case that is prepared in anticipation of litigation or for trial by
another party; and 2) "opinion" work product, which includes all attorney's mental impressions,
opinions or conclusions about a client's case. The former is discoverable upon a showing of (a)
need for the materials to prepare the party's case, and (b) inability to obtain the substantial
equivalent of such materials without undue hardship. See, e.g., Metric Engineering, Inc. v.
Small, 861 So. 2d 1248, 1250 (Fla. 1st DCA 2003). The latter is subject to nearly absolute
immunity. See, e.g., Smith v. Fla. Power & Light Co., 632 So. 2d 696 (Fla. 3d DCA 1994).
A trial court is instructed "to make particularized findings in support of its determination
of which of the documents are, or are not, subject to the work product privilege." Dismas
Charities, Inc. v. Dobbs, 795 So. 2d 1038, 1039 (Ha. 4th DCA 2001). The party asserting the
privilege must prove that the materials constitute work product. See, e.g., Prudential Ins. Co. of
Am. v. Fla. Dep't of Ins., 694 So. 2d 771, 773-74 (Fla. 2d DCA 1997) (objecting party provided
affidavits stating that the documents were prepared in anticipation of litigation). See, e.g.,
11
EFTA01082237
DRAFT
Epstein v. Rothstein 22YEAtr%
Case No. 502009CA040800X)OCXMB/Div. AG
Lloyds Underwriters of London v. El-Ad Villagio Condo. Ass'n, 976 So. 2d 28 (Ha. 4th DCA
2008) (discovery order quashed where no in camera inspection was made). Thus, a trial court is
not required to protect materials from discovery if a party makes no affirmative showing, and
only makes "a blanket statement that these items were prepared in anticipation of litigation and
are protected from disclosure without presenting evidence to support the claim." Wal-Mart
Stores, Inc. v. Weeks, 696 So. 2d 855, 856-57 (Fla. 2d DCA 1997).
Once the party seeking the documents challenges non-production, the burden shifts to the
opposing party to establish that the materials were prepared in anticipation of litigation in which
case they are discoverable upon a showing that the former has need of the materials and cannot
obtain the equivalent without undue hardship. See, e.g., Tampa Med. Assoc., Inc. v. Estate of
Torres, 903 So. 2d 259, 263-64 (Ha. 2d DCA 2005).
Given the numerous violations on the face of Edwards' privilege log, including no
descriptions of the types of communications, inadequate descriptions of the content of the
communications, and no references to particular clients, Epstein and the Court have no way to
determine whether the work product privileges claimed are fact or opinion work product. See
Privilege Log generally. It is essential that sufficient information be provided by Edwards to
distinguish between fact and opinion work product. The need to ascertain which "facts" are
being protected is particularly critical given the testimony by Scott Rothstein of extensive fraud
at RRA, and Epstein's right to discover fact work product upon a showing of need.
E. Pooled, Joint Defense or Common Litigation
Interest Cannot Be Determined from the Privilege Log
Litigants who share "unified interests" may exchange privileged information to prepare
their case without losing the benefit of the attorney-client interest pursuant to the "joint defense,"
12
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Epstein v. arcis
Case No. 502009CA040800XXXXMB/Div. AG
"common interest" or "pooled information" exception. Visual Scene, Inc., v. Pilkington Bros.,
508 So. 2d 437, 440 (Fla. 3d DCA 1987). The exception has been recognized in the case of
co-defendants, co-parties to potential litigation, members of a class of plaintiffs pursuing
separate suits, and defendants in separate actions. Id. (citations omitted).
However, the joint defense privilege, more properly identified as the "common interest
rule," see generally Capra, The Attorney-Client Privilege In Common Representations, 20 Trial
Lawyers Quarterly, Summer 1989, at 20, has been described as an extension of the attorney
client privilege, Waller v. Financial Corp. of Am., 828 F.2d 579, 583 n.7 (9th Cir. 1987). It
serves to protect the confidentiality of communications passing from one party to the attorney for
another party where a joint defense effort or strategy has been decided upon and undertaken by
the parties and their respective counsel. See United States v. Bay State Ambulance and Hosp.
Rental Serv., 874 F.2d 20, 28 (1st Cir. 1989). Only those communications made in the course
of an ongoing common enterprise and intended to further the enterprise are protected.
Eisenberg v. Gagnon, 766 F.2d 770, 787 (3d Cir.), cert. denied, 474 U.S. 946, 106 S. Ct. 342, 88
L. Ed. 2d 290 (1985); Matter of Bevil!, Bresler & Schulman Asset Management Corp., 805 F.2d
120 (3d Cir. 1986). United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. N.Y. 1989)
(emphasis added). Thus, "parties seeking to invoke the exception must establish that they
agreed to engage in a joint effort and to keep the shared information confidential from outsiders."
Ken's Foods, Inc. v. Ken's Steak House, Inc., 213 F.R.D. 89, 93 (D. Mass. 2002). See also
United States v. Sawyer, 878 F. Supp. 295, 297 (D. Mass. 1995) (despite similar interests
between employer and employee, there was insufficient evidence that communications were
13
EFTA01082239
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Epstein v. RothsteinIZYEcfarPctl
Case No. 502009CA040800XXXXMB/Div. AG
made during the course of a joint defense effort; proponent could not establish the time frame of
the purported agreement or the acts creating and/or terminating the agreement).
Edwards' privilege log does not establish that the communications listed were made
during the course of an "ongoing common enterprise," does not establish relevant time frames,
and does not establish that "a joint defense effort or strategy has been decided upon and
undertaken by the parties and their respective counsel." North River Ins. Co. v. Columbia
Casualty Co., 1995 U.S. Dist. LEXIS 53, at *7 (S.D.N.Y. Jan. 5, 1995) (citation and quotation
omitted).
Given the critical gaps in Edwards' privilege log, it is impossible to determine whether
Edwards can properly invoke the "common interest" doctrine to preclude discovery.
IV. EDWARDS' FAILURE TO SUPPLY AN ADEQUATE
LOG WAIVES THE PRIVILEGES CLAIMED AND
SUPPORTS SANCTIONS AGAINST EDWARDS
It is settled that the failure to supply a privilege log which complies with Florida law
results in the waiver of a privilege under Florida law. TIG, 799 So. 2d at 341 ("Any failure to
comply with these directions will result in a finding that the plaintiff-discovery opponents have
failed to meet their burden of establish[ing] the applicability of the privilege."). The TIG court
noted that Rule 1.280(B)(5) "uses mandatory language, and federal courts have found waiver
where the federal rule was violated." Id. (citing cases). The TIG court concluded that there was
no departure from the essential requirements of the law in compelling production based upon a
privilege waiver: "Because the trial court did not have the benefit of specific descriptions of the
documents, we assume that the court found a waiver." Id. at 342. See also Century Bus.
Credit Corp. v. Fitness Innovations & Techs., Inc., 906 So. 2d 1156. 1157 (Fla. 4th DCA 2005)
14
EFTA01082240
DRAFT
Epstein v. Rothstein 22a 2EM Pcit
Case No. 502009CA040800XXXXMB/Div. AG
(the court denied a petition for certiorari directed to an order finding a waiver of privilege in
regard to the production of documents because the petitioner filed a privilege log which was
"completely inadequate"); Kaye Scholer LLP v. Zalis, 878 So. 2d 447, 449 (Fla. 3d DCA 2004)
(the purpose of the privilege log requirement is "to identify materials which might be subject to a
privilege or work product protection so that a court can rule on the 'applicability of the privilege
or protection' prior to trial...Failure to comply with the requirements of Rule 1.280(6)(5) results
in the waiver of any attorney-client and work-product privileges."); Omega Consulting Group v.
Templeton, 805 So. 2d 1058, 1060 (Fla. 4th DCA 2002) (noting that where a privilege log "filed
by the corporations did not contain sufficient detail to comply with the requirements of Florida
Rule of Civil Procedure 1.280(b)(5)," the attorney-client privilege may be waived).
Edwards has had ample opportunities to file a proper privilege log, and has declined to do
so. Given his blatant violation of Rule 1.280(b)(5), the magnitude of the deficiencies in his
privilege log, and his cavalier invocation of numerous clearly inapplicable and/or non-existent
privileges, this Court should enter an order finding a waiver and requiring production of the
documents requested. See TIG.
In the alternative, the Court should compel Edwards to produce a privilege log that
strictly complies with TIG and the requirements of Rule 1.280 in order that Epstein and the Court
can reasonably determine whether any valid privileges have been asserted and were not waived.
At a minimum, and as soon as convenient, the Court should conduct an in camera
inspection of the documents referenced in ¶¶ 20, 22-4 of the Corrected Second Amended
Complaint and determine whether any of the privileges asserted by Edwards to block the
production of these highly relevant materials are valid or have been waived. These materials -
15
EFTA01082241
DRAFT
Epstein v. Rothstein 22YEcKar iTA
Case No. 502009CA040800XXXXMB/Div. AG
approximately thirty (30) emails — were sent to or from Edwards during the critical period of
May to October, 2009, when the Ponzi scheme was imploding. The critical nature of these
documents is vividly demonstrated by Rothstein's testimony during his recent deposition that he
had asked Edwards or Adler to specifically set aside a flight manifest for an Epstein private jet.
(Tr. Rothstein Depo 12/21/11 at 2278). Rothstein further testified that he showed boxes with
Epstein files to the Discala investors in his office, disclosing the actual names of the parties "as a
way of me attempting to induce them to invest further." (Tr. Rothstein Depo 12/20/11 at 1917;
see also Tr. 12/21/11 at 2278). Rothstein explained with regard to Edwards' lawsuits that "this
was a big ticket because there was the defendant and he's a wealthy guy" and was associated with
public figures who did not want their names dragged through the mud. (Tr. Rothstein Depo
12/21/11 at 2283).4 'thus, because the documents specifically referenced in the Corrected
Second Amended Complaint are critical to the continued deposition of Rothstein in June, 2012,
an in camera inspection should be conducted of those documents prior to that time, although
Epstein does not hereby waive the right to an in camera review with respect to any of the other
materials referenced in the Privilege Log.
Finally, the actual prejudice to and impact on Epstein by Edwards' willful and continued
non-compliance is palpable. Epstein has been prejudiced because he has not been able to
conduct critical discovery necessary for the prosecution of his claims, and necessary for
It is important to note that in light of Rothstein's testimony, potentially relevant entries
during this time frame — including, Edwards to "Attorneys at RRA" re: "Flight logs for Epstein,"
Bradley Edwards to "Attorneys at RRA" re: "Subpoena Clinton," Bradley Edwards to "Attorneys
at RRA" re: "Investigation Epstein's planes," Bradley Edwards to "Attorneys at RRA" re:
"Epstein meeting," and Priscilla Nascimento to ""Attorneys at RRA" re: "Epstein's Conference
Room Reserved" — raise disturbing questions as to whether the "Attorneys at RRA" designation
used by Edwards in his log is meant to disguise communications to Rothstein.
16
EFTA01082242
DRAFT
Epstein v. Rothstein 21anTEMT
Case No. 502009CA040800XXXXMB/Div. AG
opposition to Edwards' summary judgment motion. Epstein has spent tens of thousands of
dollars in attorney's fees trying to obtain the requested documents from Edwards and address
privilege log issues. Sanctions should be imposed on Edwards to prevent unfair prejudice to
Epstein and to insure the integrity of the discovery process. See Aztec Steel Company v.
Florida Steel Corp., 691 F. 2d 480, 482 (11th Cir.1982).
In sum, pursuant to Fla. R. Civ. P. 1.280, this Court should enter an Order finding that
Edwards' privilege claims are waived, requiring Edwards to produce the documents requested by
Epstein, and requiring Edwards to pay the reasonable expenses incurred by Epstein, including
attorney's fees, costs, payments to the Special Master caused by Edwards' failure to provide a
timely and legally sufficient privilege log, and granting such other and further relief as the Court
deems necessary and proper.
Respectfully submitted,
Joseph L. Ackerman, Jr.
Florida Bar No. 235954
FOWLER WHITE BURNE'FT, P.A.
901 Phillips Point West
777 South Flagler Drive
West Palm Beach Florida 33401
Telephone: 1
Facsimile:
Attorneys for Plaintiff Jeffrey Epstein
and
Christopher E. Knight
Florida Bar. No. 607363
FOWLER WHITE BURNETT, P.A.
Espirito Santo Plaza, 14th Floor
1395 Brickell Avenue
Miami, Florida 33131
Telephone: I
Facsimile:
Attorneys for Plaintiff Jeffrey Epstein
17
EFTA01082243
DRAFT
Epstein v. Rothstein 2gla2Fair PC
Case No. 502009CA040800XXXXMB/Div. AG
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via
electronic mail and U.S. Mail on this day of February, 2012 to: Jack Scarola, Esq.,
Searcy Denney Scarola Barnhart & Shipley, P.A., 2139 Palm Beach Lakes Blvd., West Palm
Beach, FL 33409; Jack Alan Goldberger, Esq., Atterbury, Goldberger & Wciss, P.A., 250
Australian Ave. South, Suite 1400, West Palm Beach, FL 33401-5012; and Marc S. Nurik, Esq.,
Law Offices of Marc S. Nurik, One East Broward Blvd., Suite 700, Fort Lauderdale, FL 33301.
Joseph L. Ackerman, Jr.
18
EFTA01082244
Privilege Log — Dated 2-23-2011
Farmer.Jaffe, Weissing, Edwards, Fistos & Lehrman
BATES DATE TO FROM DESCRIPTION OBJECTION
discovery of admissible evidence
05693-05695 05/28/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05698 08/21/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05706-05709 05/28/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05720-05721 05/29/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05738-05739 05/29/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05743-05745 05/29/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05754 08/03/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05759-05762 06/01/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Prlv.; not reasonably calculated to lead to
discovery of admissible evidence
05765-05768 06/23/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05771-05773 06/03/2009 Bradley Edwards Confidential Source Additional Information RE: W/P Priv.; not reasonably calculated to lead to
Epstein Molestations discovery of admissible evidence
05777-05779 06/03/2009 Bradley Edwards Confidential Source Additional Information RE: W/P Priv.; not reasonably calculated to lead to
Epstein Molestations discovery of admissible evidence
05784-05786 06/03/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05791-05794 06/03/2009 Bradley Edwards Confidential Source Additional Information RE: W/P Priv.; not reasonably calculated to lead to
Epstein Molestations discovery of admissible evidence
05803 07/22/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05836-05837 07/08/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05842-05843 07/08/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
49
EFTA01082245
Privilege Log — Dated 2-23-2011
Farmer, Jaffe. Weissing, Edwards, Fistos & Lehrman
BATES DATE TO FROM DESCRIPTION OBJECTION
05848 07/28/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05852-05853 07/29/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to
discovery of admissible evidence
05857-05858 07/31/2009 Bradley Edwards Confidential Source Litigation St