EFTA00801365.pdf

1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN 2 AND FOR PALM BEACH COUNTY, FLORIDA 3 Case No. 502009CA040800XXXXMB 4 5 JEFFREY EPSTEIN, 6 Plaintiff/Counter-Defendant, 7 vs. 8 SCOTT ROTHSTEIN, individually; BRADLEY EDWARDS, individually, 9 Defendants/Counter-Plaintiffs. 10 11 12 TRANSCRIPT OF PROCEEDINGS 13 14 DATE TAKEN: Wednesday, February 28th, 2018 15 TIME: 9:54 a.m. - 11:06 a.m. PLACE 205 N. Dixie Highway, Room 10D 16 West Palm Beach, Florida BEFORE: Donald Hafele, Presiding Judge 17 18 19 20 This cause came on to be heard at the time and place 21 aforesaid, when and where the following proceedings were reported by: 22 23 Sonja D. Hall Palm Beach Reporting Service, Inc. 24 1665 Palm Beach Lakes Boulevard, Suite 1001 West Palm Beach, FL 33401 25 PALM BEACH REPORTING SERVICE, INC. EFTA00801365  1 2 APPEARANCES: 3 For Plaintiff/Counter-Defendant: 4 LINK & ROCKENBACH, P.A. 1555 Palm Beach Lakes Boulevard, Suite 301 5 West Palm Beach, FL 33401 By KARA BERARD ROCKENBACH, ESQUIRE 6 7 For Defendant/Counter-Plaintiff: 8 SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 9 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 10 By DAVID P. VITALE JR., ESQUIRE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PALM BEACH REPORTING SERVICE, INC. EFTA00801366  1 THE COURT: I haven't seen this before 2 today. How come this wasn't provided to me, 3 all the materials here? 4 MS. ROCKENBACH: I believe it was hand- 5 delivered to Your Honor. I have to check 6 with my office, Your Honor. But I know that 7 a hand-delivery of today's UMC and 8 tomorrow's UMC was delivered to your 9 chambers. 10 MR. VITALE: We received the email 11 copy. 12 THE COURT: Okay. You have to wait, if 13 you'll like to stick around. I don't have 14 time to read it right now and this will make 15 a moment. 16 MS. ROCKENBACH: It's a very 17 significant issue, so take your time. 18 THE COURT: It's 11 pages. I can't 19 read it now. I will have some time later. 20 MS. ROCKENBACH: Thanks, Your Honor. 21 THE COURT: You're more than welcome. 22 (A recess was had 8:55 a.m. - 10:10 a.m.) 23 THE COURT: I have had a chance to read 24 the Plaintiff/Counter-Defendant Epstein's 25 Motion for Protective order and in Limine of PALM BEACH REPORTING SERVICE, INC. EFTA00801367  1 Unrelated Settlement. 2 Just as a preface to the arguments, I 3 think I largely dealt with this as a result 4 of my three-page order dated 5 January of 5 this year where I ruled -- and I have no 6 real plans to deviate from that ruling -- 7 and indicated at that time, in a footnote 8 that I handwrote, because of competing 9 orders that were offered, that I reviewed 10 the hearing transcript at that juncture and 11 found that Epstein shall produce to Edwards 12 the following: The number of claims settled 13 by Epstein regarding individuals who were 14 alleged to be victims of sexual misconduct 15 by Epstein from December 6th, 2007 to 16 December 6th, 2009; the gross settlement 17 amount by Epstein to individuals who are 18 alleged to be victims of sexual misconduct 19 by Epstein from December 6th, 2007 to 20 December 6th, 2009; the number of claims 21 settled by Epstein regarding individuals who 22 were alleged to be victims of sexual 23 misconduct by Epstein from December 7th, 24 2009 to present; the gross settlement amount 25 paid by Epstein to individuals alleged to be PALM BEACH REPORTING SERVICE, INC. EFTA00801368  5 1 victims of sexual misconduct by Epstein from 2 December 7th, 2009 to the present. 3 I further ruled that "The number of 4 claims and amounts shall be produced as 5 confidential, for attorneys' and clients' 6 eyes only, and shall not, directly or 7 indirectly, be disclosed to anyone else or 8 used outside of this litigation. 9 "If a party intends to quote, disclose, 10 rely on or use in this litigation 11 information or documents that have been 12 deemed 'Confidential, for attorney's and 13 clients' eyes only,' whether in papers filed 14 with the Court or verbally, in connection 15 with a motion, hearing, deposition or trial, 16 before any such information is quoted, 17 disclosed, relied upon or used, the party 18 must file a motion to have the information 19 or documents deemed to be no longer 20 confidential, must file the information or 21 documents under seal in accordance with 22 Administrative Code 2.303-9/09 and have the 23 proposed quote, disclosure, reliance or use 24 of such information or documents heard and 25 approved by the Court." PALM BEACH REPORTING SERVICE, INC. EFTA00801369  1 I deferred ruling on the admissibility 2 of the number of claims and the gross 3 settlement amount pursuant to this order and 4 the admissibility of the combined settlement 5 amounts of Edwards' three clients for whom 6 Edwards was prosecuting civil cases against 7 Epstein at the time Epstein filed the 8 December 7th, 2009 lawsuit against Edwards. 9 "No production of the underlying 10 settlement agreements with each of Edwards' 11 three clients or with any other alleged 12 victim is required by this order. 13 The Court defers ruling on whether 14 there will be further disclosure of any 15 breakdown of the settlement amounts paid by 16 Epstein." 17 Then, "Epstein shall file a new motion 18 addressing separately the admissibility of 19 the aggregate settlement amounts paid by 20 Edwards'..." strike that. "... paid to 21 Edwards' three clients and the gross 22 settlement amounts disclosed pursuant to 23 this order. 24 "The motion should also address 25 Epstein's position as to the production of PALM BEACH REPORTING SERVICE, INC. EFTA00801370  1 any settlement agreements underlying any 2 settlements paid by Epstein and outline the 3 confidentiality provisions governing those 4 agreements. 5 "To the extent that disclosure of any 6 such provision is subject to 7 confidentiality, disclosure shall be made 8 under seal in accordance with ..." that same 9 administrative order. 10 So this is essentially a follow-up to 11 that. 12 MS. ROCKENBACH: Thank you, Your Honor. 13 Yes. And I appreciate -- 14 MR. VITALE: May I have just one 15 clarification, Your Honor? 16 Were you able to review the response in 17 opposition? 18 THE COURT: I did. 19 MR. VITALE: Thank you, sir. 20 THE COURT: Sure. 21 MS. ROCKENBACH: Thank you, Your Honor. 22 And I appreciate Your Honor reading the 23 January 5th discovery order. 24 Also, two things have occurred since 25 the January 5th order. One, this Court PALM BEACH REPORTING SERVICE, INC. EFTA00801371  1 ruled -- I believe it was last week, with my 2 co-counsel Scott Link present -- that the 3 number of individuals before 2009 and the 4 number of individuals after 2009 are 5 admissible, just the number of claimants, 6 not the amounts. That was the ruling. 7 And there was some discussion about 8 whether amounts were in, not in, there was a 9 request for us to stipulate. And I am sure 10 that my co-counsel was concerned about his 11 appellate counsel being upset about the 12 preservation issue. 13 So we respect what this Court ruled 14 with regard to that particular ruling on the 15 number of claimants pre-2009 and the number 16 of claimants post 2009. We respected and 17 maintained our objection. 18 The reason that Your Honor made that 19 ruling was that Edwards argued to this Court 20 that it was necessary to prove to the jury 21 Edwards' motivation for filing a lawsuit 22 against -- Epstein's motivation for filing a 23 lawsuit against Mr. Edwards. And so that 24 was what prompted Your Honor's ruling. 25 The second transaction or occurrence PALM BEACH REPORTING SERVICE, INC. EFTA00801372  1 since the January 5th order was right before 2 this hearing, Mr. Vitale -- and I thank him 3 for this -- advised me that Mr. Edwards will 4 not be seeking admissibility of the amounts 5 of the other tort claimants, meaning other 6 than Edwards' three. 7 MR. VITALE: If I could clarify that. 8 Sorry. The statement that I made was 9 regarding the relief that was being sought 10 in this motion in limine, which was the 11 individual amounts. 12 The individual names we are no 13 longer -- I am not opposing that relief in 14 my opposition. 15 As to the gross number of the dollar 16 value pre-December 7th, 2009 and post 17 December 7th, 2009, that's the subject of a 18 second motion to lift confidentiality 19 designations. 20 THE COURT: As a corollary to my 21 rulings -- and if I haven't made that clear 22 yet, I will -- now, I have no intention of 23 unsealing the confidentiality provisions of 24 claims that were not handled by Mr. Edwards. 25 The only thing that I believe is PALM BEACH REPORTING SERVICE, INC. EFTA00801373  10 1 appropriately admissible as to the malicious 2 prosecution claims, and how this type of 3 case differs from the norm when we are 4 talking about comparators, and that is, that 5 in most of the cases that have been cited by 6 Mr. Epstein, in his moving papers that I 7 have been given today, the introduction of 8 those similar types of settlements have 9 typically been barred, either by the trial 10 courts or by the appellate courts, because 11 they are interrelated to the claim at issue. 12 Meaning, while they are -- they are the 13 subject of a claim at the issue, better 14 stated. 15 Meaning that, in most situations, 16 everyone's case is different. And to try to 17 use comparison settlements in those types of 18 settings, i.e., where one individual may 19 have resolved a case under similar 20 circumstances with the same defendant, it's 21 really, in most situations, irrelevant to 22 the actual claim made by the plaintiff at 23 bar, because of the significant differences, 24 in most situations, in one party's damages 25 and another. PALM BEACH REPORTING SERVICE, INC. EFTA00801374  11 1 The reason for the Court's general 2 ruling, that I have made and willing to 3 expound upon today, as to allowing the gross 4 settlement amounts, both before and after 5 the filing of the lawsuit by Mr. Epstein 6 against the Rothstein firm and Mr. Edwards 7 and III., individually, reflects, at least 8 from a relevancy standpoint, i.e., does it 9 touch on a fact at issue, is the legal 10 elements that Mr. Edwards must prove in his 11 malicious prosecution claim, and one is 12 proximate cause; and then as a corollary to 13 that, malice. 14 So that has always been the idea behind 15 the Court's global ruling that will not 16 disturb, because of the Court's sensitivity, 17 in large part understanding the issue well, 18 but also, as directed by the appellate 19 courts, that settlement offers that contain 20 confidentiality clauses must be respected, 21 and there may also be a Florida 22 constitutional argument regarding the 23 impairment of contracts, if the Court was to 24 disturb that confidentiality provision. So 25 the Court is sensitive and respectful to PALM BEACH REPORTING SERVICE, INC. EFTA00801375  12 1 those confidentiality provisions. 2 The ruling, though, is that the number 3 of claims that Mr. Epstein settled for the 4 exposure that he had after in the aggregate, 5 which were later converted then into actual 6 settlement of dollars, that aggregate, I 7 continue to maintain, would be admissible 8 and is relevant to Mr. Epstein's motive. 9 And again, the time of this filing is 10 critical to the Court's analysis. I have 11 made that clear on numerous occasions. 12 This was all going on at or near the 13 time that the Rothstein firm imploded; that 14 Mr. Rothstein and many members of the firm 15 were implicated in this Ponzi scheme, which 16 was the largest in the State of Florida; 17 which Mr. Rothstein is now going hard time; 18 from my anecdotal observations, quite 19 deservedly so; and there was a chaotic 20 condition at that office as a result of the 21 raids that were being done to confiscate -- 22 not confiscate. Poor word. -- to secure 23 every piece of evidence that the respective 24 government agencies were seeking against 25 Mr. Rothstein, and perhaps all of the PALM BEACH REPORTING SERVICE, INC. EFTA00801376  13 1 tentacles that Rothstein had as a result of 2 this massive Ponzi scheme, that went to the 3 very heart of the whole idea of personal 4 injury claims, and the factoring of these 5 claims and things of that nature. 6 And so while Mr. Epstein has every 7 right to state his position as to why he 8 filed the lawsuit, as I have also mentioned 9 on several occasions, Mr. Edwards has the 10 conterminant obligations to be able to use 11 whatever evidence that is relevant in order 12 to show what is a significant burden here, 13 and one that has been suggested by courts of 14 this jurisdiction and others to be often a 15 very difficult one. And that is, in large 16 part, the probable cause. And again, as a 17 corollary, the malice, that may have existed 18 to what is, at least, some relevant proof of 19 that -- or those elements. 20 But in large part, the financial 21 exposure, the potential embarrassment and 22 publicity that Mr. Epstein was facing, to 23 some degree, as far as the publicity and the 24 embarrassment, that Mr. Edwards was also 25 facing. PALM BEACH REPORTING SERVICE, INC. EFTA00801377  14 1 The theory being, as espoused by 2 Mr. Edwards in his malicious prosecution 3 claim, that Mr. Epstein was striking while 4 the iron was hot. And that when somebody is 5 down, when somebody is potentially 6 suffering, when someone is weakened -- 7 whether it be he himself believed he was 8 implicated or not, this was massive. This 9 was publicized. This was known throughout 10 the country, Rothstein's antics after this 11 all broke, going to Morocco, I believe, on a 12 plane, and having to be talked back into the 13 country by his wife, as I recollect. 14 Having handled those cases, the state 15 claims -- my division before I moved to 16 juvenile -- I saw firsthand what transpired, 17 and had a significant interest in knowing 18 all of the facts and circumstances, because 19 I was handling this case at the time. 20 I remember handling Mr. Edwards' 21 withdrawal from -- I guess, withdrawal from 22 the Rothstein firm, and coming in indicating 23 he was filing a notice of appearance on 24 either himself or his own firm or joining 25 another outfit. I can't remember. I do PALM BEACH REPORTING SERVICE, INC. EFTA00801378  15 1 remember that time period very strikingly. 2 So, I think that's where we are. I am 3 more than willing to hear further argument 4 as far as whittling down or more carefully 5 structuring the Court's decision here. But 6 globally, that's where I am, for the reasons 7 I just stated, which has been stated in the 8 past. 9 Ms. Rockenbach. 10 MS. ROCKENBACH: Thank you, Your Honor. 11 I think I just lost my motion, but I don't 12 want to reargue anything that the Court has 13 ruled. 14 THE COURT: It is an 11-page motion, so 15 if I left anything out or if I have not 16 touched on things that need to be further 17 touched on, you know you have full carte 18 blanche to let me know, because of the 19 respect that I have for you and for 20 plaintiff -- defense counsel -- 21 counter-plaintiff's counsel, you are never 22 encroaching upon the Court's patience when 23 it comes to trying to get this right, which 24 is all I am trying to do. 25 MS. ROCKENBACH: Thank you. I PALM BEACH REPORTING SERVICE, INC. EFTA00801379  16 1 appreciate that, Your Honor. And I also 2 respect this Court's ruling. 3 You did previously rule that the number 4 of claimants were coming in before 2009 and 5 after 2009. 6 THE COURT: But I saw that there was a 7 caveat there regarding more so discovery 8 than it was specific to admissibility. 9 Today I am being asked to determine 10 admissibility, and that's why I expounded, 11 rather lengthily, on that issue. 12 MS. ROCKENBACH: That's correct. And 13 the January 5th order it was the discovery 14 issue. 15 Last week Your Honor did rule at a UMC 16 hearing with Mr. Scarola and Mr. Link, who 17 were present -- we weren't -- Mr. Vitale and 18 I were not -- and your ruling, as I 19 understand it, although we don't have the 20 paper, was that the number of claimants 21 before 2009 and the number of claimants 22 after would be admissible. 23 THE COURT: And the aggregate amounts 24 of the settlements. 25 MS. ROCKENBACH: And so today's motion PALM BEACH REPORTING SERVICE, INC. EFTA00801380  17 1 is in part some overlap of that with regard 2 to respecting the Court's ruling, but also 3 making sure that -- and preserving the 4 objection to any of it coming in based on 5 relevance and probative value and the 6 prejudicial impact to this jury -- there is 7 an additional layer of prejudice, but it's 8 the 90.403 of misleading the jury. 9 THE COURT: Let me answer a couple of 10 those questions now -- 11 MS. ROCKENBACH: Sure. 12 THE COURT: -- because I made some 13 notes while I was reading the materials 14 here. To quell any concerns, you wrote 15 here -- forgive me. I sometimes get 16 confused. Whomever wrote the well-written 17 motion here -- 18 MS. ROCKENBACH: Then it was me. 19 THE COURT: It was actually signed by 20 Mr. Link. It does have your name and 21 Ms. Many, M-A-N-Y -- her name as well, so 22 any of the three of you did a good job -- 23 combined effort. 24 MS. ROCKENBACH: Thank you. 25 THE COURT: But it says, quote, this PALM BEACH REPORTING SERVICE, INC. EFTA00801381  18 1 Court has made it clear that Edwards may try 2 to prove the elements of malice by allowing 3 Edwards to discuss generally the number of 4 pending claims that existed in December 2009 5 and the financial exposure those claims 6 represented, end quote. 7 I would editorialize this by indicating 8 that to prove the elements of probable cause 9 and as a corollary, malice. But other than 10 that, it's relatively accurate. 11 It then goes on to state, quote, 12 settlement amounts of Edwards' three tort 13 claimants have zero relevance to Edwards' 14 burden of proof, and evidence of any other 15 tort claimants' settlements obviously even 16 less. 17 Rather, they are being sought to 18 tarnish the jury's view of Epstein and 19 inflame the jury against Epstein. 20 In other words, Epstein is damned if 21 the amounts are disclosed or not. They will 22 either be so high as admission of great 23 guilt, or too low as further alleged abuse 24 of the civil tort claimants, end quote. 25 So what I have wrote here is that I PALM BEACH REPORTING SERVICE, INC. EFTA00801382  19 1 made it clear to Mr. Scarola and 2 Mr. Vitale -- and I will continue to make it 3 clear -- that there will be no pejorative, 4 there will be no extraneous or other 5 inappropriate comments. 6 When I use the word inappropriate, what 7 I mean by that is not that I have ever heard 8 either of them make inappropriate comments, 9 at least since the Court has harnessed 10 Mr. Scarola relative to some of the words -- 11 descriptions he has leveled at 12 Mr. Epstein -- but those have stopped after 13 I made that pretty clear. 14 But the contemplation is to solely 15 utilize the amounts of the settlements in 16 the three cases at issue. And remember, it 17 has to also be emphasized, as Mr. Vitale, in 18 his response, indicated, that III. was a 19 defendant in the case -- in the Epstein case 20 that was brought against Rothstein, Edwards 21 and III. Her party status is important and 22 has to be explained. 23 But irrespective of that, the reason 24 for the Court's admission of this evidence 25 at this juncture -- we have to talk, PALM BEACH REPORTING SERVICE, INC. EFTA00801383  20 1 perhaps, more about how we are going to deal 2 with the gross settlement amounts that 3 Mr. Epstein faced, either exposure or by 4 virtue of the actual numbers paid, the cases 5 where Mr. Edwards was not counsel. 6 The argument is going to be, as I 7 understand it from Mr. Scarola's prior 8 arguments, is that Mr. Epstein, essentially, 9 attempted to chill the bar members, if you 10 will, the attorneys who were bringing these 11 cases, and that Mr. Edwards was, if not 12 actually involved in those cases, was a 13 source or a resource for these cases, and 14 also was, from my recollection, involved in 15 the prosecution of the federal claim that 16 was pending and still is pending pertaining 17 to the Victims' Rights Act. 18 How much that's going to impact upon 19 the Court's analysis here, I'm not sure. 20 But the decision that the Court made 21 regarding the global settlement amounts paid 22 still tends to prove or disprove a material 23 fact, and, that is, the probable cause and 24 corollary malice that will have to be proven 25 up. And again, the burden is significant on PALM BEACH REPORTING SERVICE, INC. EFTA00801384  21 1 the part of the counter-plaintiff Edwards. 2 So this Court will go to great pains 3 in, one, not allowing any type of pejorative 4 comments to be made against Mr. Epstein; 5 two, to ensure that the jury understands, if 6 necessary, the rationale for the Court's 7 admission of this information; and three, 8 that we are not going to go into any detail 9 whatsoever as to the nature of any claims 10 Mr. Edwards was not lead counsel. It is 11 solely to show the exposure that Mr. Epstein 12 faced going forward. 13 It will only be admissible to show the 14 timing of the suit that was brought by 15 Epstein against Edwards, to explain the 16 reasons why, from the counter-plaintiff's 17 side, Edwards' side, why he believed that 18 this suit by Epstein was brought at that 19 critical juncture. And, of course, as to 20 the three claimants: III., Jane Doe and -- 21 the third person that escapes my mind right 22 now -- 23 MR. VITALE: E.W. 24 THE COURT: E.W. Thank you. 25 -- the past exposure -- the past PALM BEACH REPORTING SERVICE, INC. EFTA00801385  22 1 payments that he made, so as to give the 2 jury some idea of Mr. Epstein's mindset. 3 Again, I have to look at this case from 4 both sides. You have the unique 5 perspectives, from your respective sides, to 6 be advocates for your clients. I have to 7 find what I believe to be the most 8 appropriate level playing field so that both 9 sides are adequately able to prove their 10 respective cases. And that's the whole 11 basis for these rulings. 12 So the way I would suggest that this 13 may be incorrect, what I read here from your 14 papers, is why I wanted to clarify or, at 15 least, explain more fully the core reasons 16 for the Court's determination of 17 admissibility. 18 Now, let me ask Mr. Vitale a question. 19 And if you don't know, that's fine as well. 20 As far as III., E.W. and Jane Doe are 21 concerned, have you spoken to them as to 22 whether or not they are willing to waive 23 their side of the confidentiality aspect? 24 MR. VITALE: As to the amount of the 25 settlement payments only? No, I have not. PALM BEACH REPORTING SERVICE, INC. EFTA00801386  23 1 I do not believe Mr. Edwards has. But if 2 that's important to the Court's 3 determination as to whether we can introduce 4 the settlement payments made specifically to 5 III., E.W. and Jane Doe, and also the timing 6 of those payments, we can go ahead and do 7 that. 8 Because, as my response makes clear, in 9 the initial complaint by Mr. Epstein he 10 pleads and alleges that these were weak and 11 minimal-value claims, being used solely to 12 fund a Ponzi scheme, and then he settles 13 them for amounts that have already been -- 14 Your Honor is aware of -- after he knows the 15 Ponzi scheme is over. 16 THE COURT: Pardon me for interrupting. 17 And that's a reason, again, just so the 18 record is clear, for the Court's decision on 19 admissibility, was that specific allegation 20 in Mr. Epstein's initial complaint that gave 21 rise to the malicious prosecution claim by 22 Mr. Edwards, that he identified the three 23 claims held by III., E.W. and Jane Doe, 24 those clients being represented by 25 Mr. Edwards, as weak in nature. And that, PALM BEACH REPORTING SERVICE, INC. EFTA00801387  24 1 again, goes to the timing, in large part, of 2 the action brought by Mr. Epstein against 3 Rothstein, Edwards and III. 4 I appreciate you raising that. 5 Right now -- again, the individual 6 claims that I think are probably going to 7 need to be further scrutinize, but I don't 8 want to leave any loose ends out. So I 9 think that because of the nature of the 10 allegations made by Mr. Epstein against 11 Edwards in the claim initially brought that 12 gave rise to the malicious prosecution 13 action now being tried, that those 14 individual claims will likely be admissible. 15 Again, weighing the confidentiality aspect 16 with the need for that information to be 17 potentially utilized by Edwards in proving 18 up his case against Mr. Epstein. 19 Again, there are references in the 20 actual documents that confidentiality can be 21 overcome. And one is -- I believe it says 22 by rule or by law or something like that. 23 MS. ROCKENBACH: That's correct, Your 24 Honor. It's page three of my motion, 25 "Except to the extent required by law or PALM BEACH REPORTING SERVICE, INC. EFTA00801388  25 1 rule; or in response to a validly issued 2 subpoena from a government or regulatory 3 agency." 4 Goes on to say that the settlement 5 agreement or terms thereof, shall be used or 6 disclosed in any court, arbitration or other 7 legal proceedings, except to enforce the 8 provisions of this settlement agreement. 9 THE COURT: And my position is, 10 certainly, it would have been better had it 11 specifically stated order of the court. 12 But the genesis, if you will, or the 13 underpins of the Court's ruling, is clearly 14 one that is subsumed under section one of 15 the exception. And that is, quote, to the 16 extent required by the law or rule, end 17 quote. 18 By virtue of Mr. Epstein bringing this 19 suit against Rothstein, Edwards and III., 20 the confidentiality aspect of the individual 21 settlements to which III. was a party, E.W. 22 and Jane Doe also being represented by 23 Edwards at the critical time of this 24 analysis, in my respectful view, would be 25 required by law so as to legally permit PALM BEACH REPORTING SERVICE, INC. EFTA00801389  26 1 Mr. Edwards to be able to fundamentally 2 prove up his case for malicious prosecution. 3 As Mr. Vitale amply points out, 4 Mr. Epstein was the initiator of all of 5 this. This would not have occurred had 6 Mr. Epstein not brought that case in the 7 first place, and then abruptly dismissed it 8 at the eve of summary judgment hearing. 9 So again -- I am not saying that with 10 any judgmental aspect or intent. It's 11 simply pointing out the fact that we 12 wouldn't be here without Mr. Epstein 13 initiating those claims. 14 And so to the extent required by law, 15 to me, a reasonable reading of that sanction 16 would be that now that Mr. Epstein has 17 started the fire, has dismissed his case in 18 chief, has now -- 19 MS. ROCKENBACH: Against Mr. Edwards. 20 THE COURT: Correct. 21 -- has now given rise to the Edwards 22 malicious prosecution claim as a direct, 23 obviously, response to the dismissal of the 24 case in chief against Edwards, to the extent 25 required by law, seems to me to be quite PALM BEACH REPORTING SERVICE, INC. EFTA00801390  27 1 self-evident. And, that is, that these 2 three claims, that were otherwise 3 confidential, is now needed under the law 4 for Mr. Edwards to be able to, in part, 5 prove up his malicious prosecution claims 6 that the six -- I believe it's six 7 elements that are required, most probably 8 here, probable cause and corollary malice. 9 MR. VITALE: Your Honor, I would just 10 point out for the record that in one of 11 Mr. Epstein's interrogatories he requested a 12 breakdown of all the payments made as a 13 result of these settlements, which 14 essentially asks for a copy of the closing 15 statement. 16 In responding to that we obviously need 17 to assert attorney-client and work product 18 privilege. But we were required to 19 disclosed these total settlement amounts 20 already in discovery initiated by 21 Mr. Epstein. I think that's important for 22 the record. 23 THE COURT: Thank you. I didn't know 24 that. I appreciate -- If I did, I didn't 25 remember. Thank you. PALM BEACH REPORTING SERVICE, INC. EFTA00801391  28 1 MS. ROCKENBACH: Your Honor, just to, 2 perhaps close our hearing -- and I 3 appreciate the Court's thoughtful ruling, 4 extensive ruling -- you have denied 5 Epstein's motion to motion in limine 6 regarding the admissibility of the three 7 tort claimants and the amounts paid to them. 8 But I haven't -- the tail end of your ruling 9 did not quite address the other tort 10 claimants. 11 I understand that Your Honor said 12 that -- and cautioned Mr. Edwards' counsel 13 that no detail whatsoever of other tort 14 claimant would come in at trial. I presume 15 that you mean lurid details regarding their 16 claims against Mr. Epstein so as to further 17 inflame the jury. 18 THE COURT: Let's not add something 19 that was not said. None of the details 20 regarding those claims will be admissible. 21 The only details that will be 22 admissible, if you will -- if you want to 23 call them details. I don't think that they 24 are. -- is the aggregate amount of the 25 settlements thus showing at least relevant PALM BEACH REPORTING SERVICE, INC. EFTA00801392  29 1 evidence, i.e., tending to prove or disprove 2 a material fact -- strike that. 3 Material fact being probable cause and 4 the malice corollary. And that is what is 5 the best evidence -- and I am not using best 6 evidence in the traditional sense, but as 7 generically -- and that is, what would be 8 the best way to be able to prove -- or a way 9 to prove Mr. Epstein's exposure at the time 10 he filed his lawsuit, then the proof being 11 in the pudding, i.e., the aggregate 12 settlement amounts that were paid out, so as 13 to demonstrate what could be potentially 14 seen as a chilling effect to all who were -- 15 who were prosecuting claims against him. 16 Now, again, I hate to leave loose ends, 17 but I am going to have to hear a little bit 18 more about Mr. Edwards' involvement in these 19 later cases to be able to really get a 20 flavor for how much I am going to let in. 21 The aggregate sounds like a tempting 22 limit -- a tempting limiting starting point. 23 But if it can be reasonably shown to me that 24 Mr. Edwards had no real involvement in 25 anything other than those three claims, then PALM BEACH REPORTING SERVICE, INC. EFTA00801393  30 1 the Court -- as I have mentioned and as you 2 well know, the appellate courts have been 3 much more prolific in writing about the 4 fluidity of motions in limine until the 5 court gets the full flavor at trial. And I 6 don't think any case that I can think of 7 would be more pertinent to that type of 8 analysis than this one, because there is so 9 many things that are going on in the 10 workings of the case. 11 So, while I made a definitive ruling as 12 to the three claimants that Mr. Edwards was 13 representing, and the fact that the 14 individual settlement amounts, because of 15 the reasoning I have already mentioned, 16 would be permissible and would be an 17 exception to the confidentiality agreement, 18 particularly with the expressed permission 19 of those three claimants, I would feel more 20 comfortable if that is immediately obtained. 21 MR. VITALE: Yes, sir. 22 THE COURT: But other than that, I 23 think that the extent required by law, 24 provision of the exception is something that 25 the Court can hang its hat on comfortably, PALM BEACH REPORTING SERVICE, INC. EFTA00801394  31 1 and I have given you the analysis in that 2 respect. 3 But again, I going to continue to 4 reserve on this aggregate amount until I can 5 figure out what Mr. Edwards' involvement 6 was, a better understanding of how, if at 7 all, Mr. Edwards' continuing involvement, if 8 any, what it may have been, vis-a-vis the 9 time periods. 10 Because it is very hard for me -- as 11 you know and you see what goes on in these 12 hearings -- I try my best to remember as 13 much as I can -- I am talking about even the 14 8:45s when people asking me to recall things 15 that happened a month ago -- I just don't. 16 We went four trials back-to-back. I 17 mean, since the beginning of the year, four 18 jury trials back-to-back. It wasn't until 19 last Tuesday -- my deputy is my witness -- 20 that during business hours I was able to 21 spend more than a half hour in block time in 22 my office, so the rest of time was out here 23 on the bench. It's sometimes hard to 24 remember everything that goes on, obviously. 25 But what it simply is trying to PALM BEACH REPORTING SERVICE, INC. EFTA00801395  32 1 communicate is I do need to have further 2 information in that regard. 3 MS. ROCKENBACH: Regarding the other 4 tort claimants? 5 THE COURT: Correct. 6 MS. ROCKENBACH: And not only, may I 7 suggest to the Court, you need a flavor, as 8 you say it, for Mr. Edwards' role in those 9 cases, but if the basis or predicate for 10 your ruling is what was motivating 11 Mr. Epstein, it would be important to know 12 whether Mr. Epstein knew Mr. Edwards' role. 13 THE COURT: Remind me of when the 14 settlements of the three -- 15 MR. VITALE: July 2010, Your Honor. 16 THE COURT: And that was -- 17 MR. VITALE: Seven months after the 18 filing of this lawsuit, Mr. Epstein's 19 lawsuit. 20 THE COURT: So the exposure would be, 21 then, what would be at issue at the time 22 Mr. Epstein filed his case against 23 Rothstein, Edwards and III. And then the 24 amounts that were paid after, would serve as 25 proof as to the fact that the claims -- at PALM BEACH REPORTING SERVICE, INC. EFTA00801396  33 1 least what will be argued by the 2 counter-plaintiff Edwards was that the 3 claims weren't weak, that Mr. Epstein faced 4 significant exposure, faced significant 5 exposure for those three cases and other 6 cases. 7 MS. ROCKENBACH: It's the other cases, 8 Your Honor, that you are reserving ruling on 9 until you receive more information or -- 10 THE COURT: Yeah. 11 MR. VITALE: May I seek some 12 clarification? 13 THE COURT: I mean, I did say earlier 14 about the chilling effect. But I am not 15 convinced that that would make much of a 16 difference, because Mr. Edwards, III. and 17 Rothstein were the only ones that were sued. 18 He didn't sue -- Mr. Kuvin, I believe, had 19 cases, Mr. Josefsberg. 20 MS. ROCKENBACH: Mr. Scarola. 21 THE COURT: I didn't know Mr. Scarola 22 had cases. But Mr. Scarola. 23 Under the circumstances, I am still not 24 terribly comfortable with talking about the 25 aggregate. PALM BEACH REPORTING SERVICE, INC. EFTA00801397  34 1 Something you needed clarified, 2 Mr. Vitale? 3 MR. VITALE: Yes, sir. When you're 4 saying the aggregate, are you referring to 5 the aggregate number of claims, or are you 6 referring to the aggregate settlement 7 amounts? 8 THE COURT: Both. 9 MR. VITALE: Because we had a hearing 10 last week where you had ruled admissible the 11 aggregate number of claims. 12 At that hearing Mr. Link had suggested 13 that, well, if those are coming in, we are 14 going to want to tell the jury what the 15 aggregate settlement amounts are, because my 16 client is a billionaire and he's -- 17 THE COURT: And I'm sorry. 18 MR. VITALE: He wanted that stipulation 19 and you wouldn't give it. So I just want -- 20 if that issue is still -- if the Court would 21 like further workup on it, I want to make 22 sure I'm clear. 23 THE COURT: Again, goes to the fluidity 24 of these rulings. 25 It's hard for me -- again -- and I PALM BEACH REPORTING SERVICE, INC. EFTA00801398  35 1 don't mean to make excuses, but when you're 2 carrying the loads that we're carrying, 3 without any dedicated support -- we have the 4 nine staff attorneys assigned to the 5 courthouse to cover the needs of 50 judges 6 or so -- it's hard for me to have anything 7 in a condensed format. 8 Everything that I read, I have to read 9 every page, or I try to read every page. I 10 don't have the luxury of having some 11 dedicated clerk who can digest all of this 12 material and provide me the streamline 13 version of what it is. 14 So the problem that I have often is 15 trying to put into place the dates that all 16 of this took place, i.e., the settlements 17 with the three people that Mr. Edwards 18 represented, vis-a-vis, the time that 19 Epstein filed a lawsuit. That often comes 20 as a bit of a confusion point to me, not the 21 cause by anybody, except my own attempt to 22 try to remember this stuff as best I can. 23 So as I'm listening to it today, as I 24 said, I have no doubt -- and I am 25 comfortable with the ruling regarding the PALM BEACH REPORTING SERVICE, INC. EFTA00801399  36 1 exposure that Mr. Epstein faced prior to his 2 filing of the lawsuit in 2009. 3 The proof in the pudding statement that 4 I made earlier regarding the ultimate 5 resolution of those cases by way of 6 settlement, the least of which I believe is 7 $1 million of the three, and juxtaposing 8 that exposure with the ultimate settlement 9 amounts, so as to show from the counterclaim 10 standpoint, evidence of probable cause, or 11 lack thereof, and malice. 12 The struggle that I'm having right now 13 is what would be the nexus between any of 14 these other outstanding claims and the 15 aggregate settlements of those when 16 Mr. Epstein did not sue any of those other 17 lawyers for any reason that I'm aware of. 18 And you both have clarified and confirmed 19 that, to my knowledge. 20 And also, again, just trying to 21 understand both sides' theories here, that 22 the discreet