EFTA00809620.pdf

5 7 obviously, what may or nay not be asked of 1 MS. ROCKENBACH: Thank you, Your Honor. 2 Mr. Edwards and Mr. Epstein principally on She next -- I think based on that 3 these cases or these Issues, the global 3 rullnq, Your Honor Would preclude the 4 order of the Court would be that those a settlenents of any of the claimants, 5 individual claims would not be subject to a including the settlement amounts of the 6 discussion as to the merits, as Mr. Scarola a three that were represented by Hr. Edwards. 7 has stipulated. 7 And in our notion in 11M/60, mo cited However, as it relates to both probable o the Florida Evidence Code 90.408, which 9 cause, i.e., motive and malice, the number 9 precludes the admissibility or evidence of 10 of claims -- that is, speaking in terms of 10 offers to compromise or settlements to prove 11 voltme -- that Hr. Epstein was facing at the 11 liability or absence of liability. 12 time that he brought the suit and continued 12 She cases settle all the tine for many 13 the prosecution of that suit would be 13 different reasons. And I know that value 14 relevant. So that's the distinction being 14 has become an issue in this case of 15 drawn by the Court, the detail, the merits, 25 Mr. Edwards' three claimants, but certainly 16 whatever may have been discovered as it 26 not of any of the other claims that 22 related to those cases would not be 27 Mr. Epstein may have settled. So that's the 38 individually admissible in evidence, or any 28 first issue. Any other cases that he may 20 of those details from those cases. 29 have settled are wholly irrelevant and 20 However, as I said, the sheer number of 20 should be precluded. 21 cases nay be relevant, i.e., to tend to 21 THE COURT: Let me understand. The 22 prove or disprove a materiel fact as it 22 issue of any settlements outside of the 22 r00000a to probable cause and malice. So 22 three people, I don't have a problem with in 24 that's the decision. 24 terms of introducing that information. 25 Next issue, please. 25 In other words, I don't intend to allow 6 8 HR. SCAROLA: Excuse ma. Hay I also that information to be introduced, unless I 2 ask for this clarification, Your Honor? can be persuaded otherwise. 3 Will we be permitted to discuss the HR. SCAROLA: I don't intend to attempt 4 fact that Mr. Edwards had taken a leadership to persuade you at this point In time. 5 role In coordinating the prosecution of all I don't mean to interrupt the Court, 6 of those claims, that Ls, that it was a -- but I thought it might abbreviate things. it was a unified effort on the part of THE COURT: That's fine. 0 multiple law firms that Hr. Edwards was MR. SCAROLA: I don't intend to attempt playing a leadership role, which then led to 9 to convince the Court at this point in time 30 a basis to focus upon Mr. Edwards because of 20 that that evidence is admissible. I can, 21 that leadership role? 21 however, foresee that it becomes relevant 21 THE COURT: If that's based on fact, 21 and material. IS then I believe it would be -- you would be 29 THE COURT: You are talking about those 24 able to introduce that, yes. 24 individuals outside of the three -- 15 MR. SCAROLA: Thank you, sir. 35 HR. SCAROLA: Yes, Your Honor. 16 THE COURT: Because, again, it tends to 16 THE COURT: -- that we have been )7 prove or disprove a material fact, i.e., 17 speaking about at length. 10 probable cause, motive, malice. 10 HR. SCAROLA: And I am only raising 19 Again, whether or not the jury accepts 19 that now, because, although I don't intend 20 that -- it's going to be up to the jury to 20 to contest admissibility at this point, I 21 accept it, reject it, give it the weight it 21 foresee the potential that it may be 22 deserves, or to infer anything that they 22 admissible and therefore it should be 23 reasonably believe would be inferrible as a 23 discoverable. 24 result of that information. 24 Me should be able to discover what 25 The next issue, please. 25 Mr. Epstein's economic active was to attempt Palm Beach Reporting Service, Inc. EFTA00809620  9 11 1 to avoid liability in all of those other • But III pretty sure that some cases 2 cases, because his economic motive in 2 were filed by Mr. Josefsberg. 3 attempting to avoid liability -- not only of 3 THE COURT: Thank you. 4 the three cases settled for $S.S million, 4 Ms. Rockenbach, so as far as the 5 but for the liability in all of the other collateral claims are concerned -- by no 6 cases as well -- could become relevant and a means am I minimizing those by using that 7 material, since it's reasonably calculated ' terminology. It's just to distinguish the 8 to load to discoverable evidence. . three cases that aro at the heart of this 9 I would ask -- and this may or may not 3 case as it relates to the malicious 10 bo the appropriate time to address this, but 10 prosecution claim as opposed to those other 11 it relates directly, so I think that it II folks -- those other young woman, in 12 is -- I would ask that Kr. Epstein be 12 particular, who had either brought suit or 13 compelled to respond to discovery with 11 made claims that were paid by Mr. Epstein. 14 regard to each of those sattloments. 24 The ruling of the Court is that I am 25 THE COURT: All right. Do you know how IS going to find at this point -- again, 26 many cases wore actually filed against him 16 subject to further inquiry at a later time 17 for the same or similar activities that wore 1, and whether or not that becomes an issue is 28 alleged by the three individuals hero? IS going to be subject to further scrutiny -- 29 MR. SCAROLA: Right now I would only bo 19 but I'm going to find that that information 20 guessing, Your Honor. 20 would be discoverable, i.o., what was the II THE COURT: I know Kr. Kuvin had 2: total amount of payments made by 22 several, if my memory is correct, in my 22 Mr. Epstein? 29 division. 23 At this point I am withholding fly 24 MR. SCAROLA: Sid Carcia had a number IA ruling -- or deferring ruling on 25 that he was prosecuting as well. There II admissibility, just for the record -- 10 12 I were -- I think it was close to 20. I think 1 because you all aro far bettor aware of the 2 there were approximately 20. I think wo 2 standard than I -- but the standard being 9 have listed each of the case numbers. 2 because discovery is broader than what may 4 THE COURT: I won't hold you to the 4 bo admissible at trial, the total amount 5 exact number. It is really for anecdotal h paid, again, goes back to that place in tiro 4 information. 4 when Mr. Epstein would have brought this 7 MR. SCAROLA: I think it was about 20. a lawsuit at or near the time or 0 Also, there were a substantial number 0 Mr. Rothstein's arrest' at or near the Ciao 9 of additional victims with whom settlements 8 or rederal and perhaps state agents raiding 20 were negotiated in the context of the 20 the offices or the rim; at or near the tiro 2I non-prosecution agreement. Those wore all 21 or those cases reaching a crescendo as far 22 of the victims that wore represented by as as discovery was transpired; and then 29 Mr. Josefsberg. es ultimately -- at least these three cases -- 24 THE COURT: So they were claims that OA settling loss than a year thereafter, as I 25 wore settled without the formal filing of a oh recall. You can correct ma if I am wrong. 16 lawsuit? Is that what you aro suggesting? 16 So the motive, malicious, probable 17 MR. SCAROLA: I think that 07 cause issues that we have talked about at 18 Mr. Josefsberg nay have filed some lawsuits, II length in the past, again, because of the 19 but I believe he also settled some claims LI nature of discovery Doing broader than what 20 under the terms of the non-prosecution CO may be admissible at trial, I an going to 21 agreement simply by asserting the claims el require that Information bo provided, so . 22 under the federal statute and coming to an SI deferring as to its admissibility. 23 agrooment with regard to how those were to 23 Any confidentiality matters that may 24 be resolved without the necessity of filing MB have attached to those settlement offers -- 25 formal legal proceedings. MI strike that -- to those settlement payments Palm Beach Reporting Service, Inc. EFTA00809621  13 15 would also have to be discussed at Saga clarification, please? 2 time. 2 THE COURT: Sure. Of course. Section 90.408, for the record, states, 3 MR. LINK: Judge, I think I heard you 4 though, •Evidence of an offer to compromise a say that we are required to produce, on 5 a claim which was disputed as t0 validity or Mr. Scarola's ore tenus motion, the 6 amount, as well as any relevant Conduct or settlement agreements. 7 statements made In negotiations concerning a THE COURT: No, I didn't say settlement 8 compromise, is inadmissible to prove agreements. I said the gross settlement 9 liability or absence of liability for the 9 amount. 10 claim or its value. End quote. 10 HR. LINK: Gross amount. 11 So this is concerning, obviously, In 11 Your Honor, for further clarification, 12 light of the statute, as to not only the 12 would that amount only include those 13 global settlement number that may be 13 settlements that took place on or after the 14 involved, but also as it relates to the 14 date that Mr. Epstein filed his Complaint? as three individuals. 25 If you look at their argument, the 96 Now, that's not squarely before mo 26 exposure that still existed is what they 27 today. And I would rather be able tO deal 27 believe helps them show motive or malice. 28 with that at SORB Other time so that it's 28 Anything settled beforehand, obviously, had 29 fully briefed and we know where w0 are going 29 been taken care of and should not fit within 20 on this, because Mr. Scarola has his own 20 the description that they gave the Court. 22 rationale for insisting that the 55.5 22 THE COURT: Mr. Scarola, your position 22 million figure associated between the three 22 on that? 29 individuals involve directly here would, in 29 MR. SCAROLA: First, Your Honor, I'm 24 his view, be admissible. 24 not sure we're arguing over any practical 25 Mr. Epstein largely hanging his hat on 25 significance because I don't think any of 14 16 Section 90.408 takes a different view. the cases settled before this lawsuit -- the 2 Similar t0 the hearsay rule, there aro 2 malicious prosecution claim -- was filed. noted and notable exceptions to 90.408, MR. LINK: They did in fact, Your meaning that, in the hearsay context, if the honor. 5 information is not being used to prove the MR. SCAROLA: Well, I stand corrected, 6 truth of the matter asserted, there aro then. other ways in order to get that information But at any rate, we respectfully should 8 in. get discovery that may be admissible with Similarly, I am at least generically 9 regard to the extent to which these claims 20 aware that there have boon exceptions that 20 wore, quote, ginned up, unquote, as a 21 have boon stated under the law to 90.408. ii consequence of anything that Hr. Edwards 22 So again, I would prefer to talk about 22 did. 29 them at a later time. So I think that, 29 And what we have hoard repeatedly la, 24 Ms. Rockenbach, what I would suggest you do 24 we're talking about things Mr. Edwards did Is is separate out, as part of the motion in is while he was at Rothstein, Rosonfeldt 16 ',rano -- my apologies -- if it is, I would 16 Adler. So settlement of claims before then )7 ask simply to separate it out and set It for 17 as compared to settlement of Clain/5 after 18 a half-hour special set hearing and we will 10 that, and settlement of claims following the 19 take it up at another time. 19 disclosure of the alleged misconduct at RRA, 20 I would rather get into, now, these 20 would be at least discoverable with regard 21 issues of Fifth Amendment privilege that 21 tO ashother these claims were somehow ginned 22 have been scheduled. 22 23 HS. ROCKEHBACH: Yes, Your Honor. 23 THE COURT: Ne no longer need to use 24 Thank you. 24 the term alleged in terms of the misconduct 25 HR. LINK: Your Honor, may I make ono 25 at RRA. Palm Beach Reporting Service, Inc. EFTA00809622  17 19 MR. SCAROLA: I was referring to -- MR. SCAROLA: May we get a breakdown as 2 THE COURT: There was misconduct at to -- because of the argument that•a bean 3 RRA. made and Your Honor's comments -- the number MR. SCAROLA: -- Mr. Edwards. of cases settled prior to the filing of the THE COURT: Whether there was malicious prosecution claim against 6 misconduct on behalf of Kr. Edwards, that Mr. Edwards, that total grossi than the is, in fact, still a matter of allegation. number of cases settled while at -- while 8 MR. SCAROLA: Yes, air. And that's the Mr. Edwards was at RRA, that gross; the only misconduct I was referring to. number of the cases settled post RRA's 10 THE COURT: Absolutely. 10 Implosion and that gross? 11 I aurae with Mr. Scarola, not only as 11 THE COURT: Mr. Link or Ms. Rockenbach? 12 to his argument, but also as it related to 12 MR. LINK: Judge, I think that -- as I 13 Mr. Epstein's state of mind, i.a., probable 13 said, I don't want to dispute the Court's 14 cause to bring this claim in the first 14 ruling, but now breaking it down into 25 place. 25 segments has a whole different potential 26 It can be argued -- and I expect you to 26 relevance. It's no longer discovery. We 23 argue that -- that being Mr. Mr. Link and 21 aro looking at, then, finding individual 28 Ms. Rockenbach and his other counsel -- that 28 folks who may have resolved their cases, 19 he clearly had probable cause to bring these 29 where if we give you a gross number -- if I 20 claims. 20 understand Mr. Scarola'a argument -- It's 22 On the other hand, an argument -- a 21 the gross exposure that was hanging over 22 piece of the argument that will be made on 22 Mr. Epataln's head that caused him to do 22 behalf or Mr. Epstein is that he was looking 22 this. 24 at this In a vengeful fashion, that he was 24 THE COURT: That's precisely the word I 25 looking at this as a way to get back at 25 was going to use, and that's the reason 18 20 1 Edwards for not only his pecuniary lost, but behind the Court's ruling, is that the issue 2 some or the other things that we have of exposure is one that. In my respectful a discussed as lc relates to motive, i.e., view, would be the relevancy of potentially probable cause, 1.o., malice. admitting that information. 5 So that's the reason behind the Court's MR. SCAROLA: And knowledge of ruling that the global sett loran amount nay Mr. Epataln's exposure would clearly be be potentially admissible or discoverable, based upon what he had to pay even before he • in my view certainly. Because, again, the filed the lawsuit. I had to pay x number of 9 issue or relevancy is ouch of a broader 9 dollars and I'm really mad at Bradley 20 discussion and much more or a broader viol. 20 Edwards now for the role he has played in Alb on to part or the appellate courts as it II causing ma to expend that much money so far. raaaaaa to admissibility.. 22 I'm going to put a stop to this. I'm going 29 So :or row. that's the ruling of the 29 to sue Edwards and scare off everybody else. 24 Court. 24 THE COURT: Again, for discovery 25 MR. LINK: I understand that. We want purposes only at this point, I'm going to 16 to comply with the Court's order. Two require, then, simply a breakdown of what 17 things. One, you're asking us to provide a was paid prior to December 9th, 2009. Happy 18 gross number of the total amount of anniversary 1n two days: the girt that keeps 19 settlements, correct? And we ask the Court on giving. 20 that that number be subject to 20 MR. SCAROLA: Actually, apparently 21 confidentiality. Wo aro disclosing 21 today is the anniversary day. Pearl Harbor. 22 confidant ial Stitt lament amounts -- 22 Sneak attack. 23 THE COURT: That would be for, at this 23 MR. LINK: Justified filing. We can 24 point,. Counsel and his client's eyes only, 24 sit out hare and hurdle things to the court 23 and shall not be disclosed. 25 rep , Your Honor. Palm Beach Reporting Service, Inc. EFTA00809623  21 23 1 THE COURT: We have boon speaking with THE COURT: Thank you. 2 smiles on our faces, knowing that despite All right, let's get to, now, the Fifth 3 the seriousness of everything that has gone Amendment issues, if we could please. I 4 on here, the attorneys and the Court, at have gone through the materials. Thank you, 5 least, can have moments of brevity that is particularly to Mr. Seaaaaa and his office 6 not disrespectful to any of the litigants or for culling these out and -- pursuant to the 7 any of those who may have been subject to court order -- which I have never had a the prior cases. I want to make clear that situation in the many years I have been 9 that is In fact the case in this brief doing this that Mr. Scarola -- for that 10 =mane. 10 matter, Ma. Rockenbach -- to a lessor 11 I think that I as at least reasonable♦ 11 degree, to the extent that Mr. Link has not 12 convinced that any prior settlenents thole 12 appeared before and that often -- to over 13 wore made within a two-year period of. 13 knowingly transgress the Court's order. In 14 December 7th. 2009 -- and then chat would to 14 any event, I commend them for doing what as broken down. And then anything paid after 25 they have done to cull this out. would be broken do'w'n. 26 So my thinking is -- I think I asked 27 : chink it's a relatively sine,e 27 that both of you try to get together and see exorcise that won't cause any typo of 20 if there's any cannon ground here to avoid if overburden or onerous type of requirement qg 29 the Court's involvement. 20 the part of Mr. Epstein and/or his prior 20 Have there boon any agreements with OM counsel. 21 respect to any of these questions and 22 HR. LINK: Ka understand the Court's 22 answers? 29 ruling. Thank you, edge. 29 HR. SCAROLA: We have been told every 24 THE COURT: Thank you, again. And 24 one is challenged, your Honor. IS that's the reason behind the ruling that en 25 And if I might make a preliminary 22 24 in fact, the nail was hit on the head by State'bent. Mr. Link, is ono of mindset of Mr. Epstein 2 THE COURT: Ms. Rockenbach you may as going to, again, what may be reasonably well. e calculated to load to the discovery of HR. SCAROLA: Your Honor, the defense admissible evidence, and that is, relating has cited case law that an element of a co issues of probable cause and nalico as ic civil claim may not be proved based solely pertains to the potential total exposure, upon the inference that arises from the a the bast -- a consideration or best assertion of the Fifth Amendment. NO agree. • evidence, not so much under the rule -- That is not a point of contention. :0 What I'm saying is, a way co portray :0 The defense has also asked for a jury II that mindset would be one of the exposure II instruction to be given at the time that the 22 Mr. Epstein faced, not only at the tine, but 22 Fifth Amendment, I assume, is initially 23 potentially in the future so-called proof of 23 asserted in the jury's presence by 24 the pudding axiom that ultimately resulted 14 Mr. Epstein -- in all likelihood through 25 in the amount of money that was paid. 36 playing excerpts of his deposition -- his al MR. LINK: Your Honor, should we 16 videotaped depositions -- and we have no 17 prepare an order on that to include the 17 objection to that. Is attorneys'-eyes-only confidentiality ruling? 10 I think that both sides can get 19 HR. SCAROLA: Attorneys and client. 19 together and fashion an appropriate jury 20 THE COURT: Attorneys' and clients' 20 instruction that informs the jury that while 21 eyes only, not to be disclosed in any 21 In the context of a criminal case, an 22 fashion outside of this litigation. 22 individual's assertion of a Fifth Amendment 23 MR. LINK: Actually, Mr. Edwards is one 23 right may not be used against him. 24 of hie own attorneys, isn't he? 24 In the context of a civil case, an 25 MR. SCAROLA: He is. yes. 25 adverse inference may be drawn from the Palm Beach Reporting Service, Inc. EFTA00809624