EFTA00595514.pdf

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION www.flsb.uscourts.gov IN RE: CASE NO.: 09-34791-RBR ROTHSTEIN ROSENFELDT ADLER, P.A., CHAPTER 11 Debtor. MOTION FOR EMERGENCY HEARING AND FOR A STAY OF COURT ORDER DIRECTING PREPARATION OF PRIVILEGE LOG Movant, LM, through counsel, pursuant to L.R. 9075-I hereby requests an emergency hearing before December 28, 2010 and moves to briefly stay enforcement of its Order [DE 1068] compelling LM and her counsel Fanner, Jaffe, Weissing, Edwards, Fistos, & Lehrman, P.L. ("FJW") to produce a privilege log in order to permit the state court: (1) to first rule on the pending motions for summary judgment and for protective order which make the privilege log and production irrelevant; and/or (2) to permit FJW sufficient time to prepare an appropriate privilege log relating to documents which now exceed 24,000 email-related pages. In support, FJW on behalf of LM states as follows: I. BACKGROUND A. The Pending Summary Judgment and Protective Order Motions As this Court is well aware, Jeffrey Epstein (a convicted sex offender) has sued one of his alleged victims, ■ as well as attorney, Bradley J. Edwards, Esq.', in Florida state court for conduct that allegedly occurred in the course of Edwards' representation of multiple young female victims of Epstein's sexual abuse. While an employee of the now defunct Rothstein, Rosenfeldt, Adler firm and with his current firm, Edwards filed and pursued civil lawsuits Mr. Edwards, an attorney with the FJW firm, is represented by Jack Scarola of the firm Searcy, Denny, Scarola, Barnhart, and Shipley.. EFTA00595514 against Epstein to recover damages for Epstein's extensive pattern of molestations. Mr refers to one of Mr. Edwards's clients who was an Epstein victim. In retaliation and to try and intimidate Edwards and his young clients, Epstein brought his state lawsuit alleging that Edwards had somehow fabricated the claims. Edwards has filed a comprehensive motion for summary judgment against Epstein in state court, detailing how he is entitled to judgment on each and every one of Epstein's frivolous claims. Epstein has yet to file any response to Edwards' comprehensive summary judgment motion. The hearing on that Motion is set for January 5, 2011 in front of the state trial court. In addition to the Summary Judgment Motion, Edwards has filed a Motion for Protective Order in the state court case to narrow the exact state subpoena that Epstein is trying to litigate in this Bankruptcy Court. That Motion is set for hearing for January 27, 2011. A Notice of Filing containing that Motion was filed with this Court [DE 1197]. B. Epstein's Attempts to Involve this Court in the State Litigation Despite that summary and protective order motions are pending in state court, Epstein continues to harass Edwards through pursing discovery requests connected with the state court case and has tried to disrupt the state court proceeding by getting this Court involved in enforcement of an identical subpoena issued in state court. In particular, on April 12, 2010, Epstein propounded an extremely broad Request for Production (RFP) to Edwards under state- court discovery procedures. Containing some 27 different requested items, the RFP seeks all sorts of electronically stored information, including a raft of internal emails between Edwards and other attorneys, paralegals, expert witnesses, investigators, and others who worked on the civil lawsuits against Epstein. On May 11, 2010, Edwards duly responded to the request for production. Through his legal counsel, Edwards noted that many of the requests sought attorney- client or work-product privileged information and others were overly broad and unduly burdensome. On April 16, 2010, four days after making the requests to Edwards — without EFTA00595515 waiting for his responses to the requests, much less a court ruling on Edwards' objections - Epstein served a state-court subpoena duces tecum for documents on bankruptcy court-appointed trustee, Herb Stettin, which asked for the identical inform. Mr. Stettin never represented any of the underage females who had been sexually abused by Epstein. Instead, Mr. Stettin has possession of certain records related to this case — and many more entirely unrelated to this case — because he was court-appointed as bankruptcy trustee for the now-defunct law firm of Rothstein Rosenfeldt Adler (RRA). RRA's electronic database, including all electronically stored files and emails, were left in the possession of Stettin. Because Stettin was not involved in the sexual abuse litigation against Epstein, he does not have detailed knowledge of the persons or subjects discussed in the various e-mails and other records. On June 28, 2010, a hearing was set before the state court on Epstein's Motion to Compel the Trustee to produce the documents responsive to Epstein's subpoena. On that date, Stettin's counsel, Edwards' counsel, and counsel for Epstein all met in the hallway outside the courtroom and worked out an agreed resolution to the dispute. All counsel agreed that Stettin would turn over to Edwards's counsel all documents responsive to the subpoena and that Edwards' counsel would then prepare a privilege log and produce all documents that are not subject to objection or privilege. According to their understandings, counsel for Epstein was to prepare a consent order memorializing the agreement. It never did. Instead, Epstein decided to launch litigation in yet another forum — the United States Bankruptcy Court for the Southern District of Florida. On July 14, 2010, Epstein filed a Motion to Compel production of numerous documents from Trustee Stettin in the bankruptcy proceeding being overseen by the bankruptcy court [DE 672]. This filing sparked a series of motions for protective orders [DE's 818, 819, 1022]; appointment of Broward County Circuit Judge Robert Carney as special master to take all materials responsive to the subpoena from Stettin and to prepare a privilege log [DE 888]; filings of EFTA00595516 motions for clarification by the special master due in part to the difficultly of the requested materials [DE 1013]; and filings other motions regarding the substance of the requests and the tactics Epstein was employing to force a federal court to rule on state-court request for documents many of which included privileged materials. II. ARGUMENT A. An Emergency Ruling Is Necessary 1. The Agreement on the Production of the Privilege Log In the midst of the foregoing, Epstein's counsel and FJW entered certain understandings to work out the production pursuant to the Court-ordered production of email [DE 1068] and creation of a privilege log. Under these understandings, Stettin's counsel produced a series of three CDs to FJW at different times. However, these CDs did not duplicate what was provided to the special master, which has led to confusion over the materials subject to the privilege log. Also, FJW and Epstein's counsel entered into an agreement that FJW would produce the privilege log 15 days after hard-copies of the email were bates labeled and produced to FJW. The emails were produced in seven bankers boxes on December 13, 2010. According to the agreement, the due date would thus be December 28, 2010. FJW entered this agreement based upon its reliance on the representation by counsel for the trustee that there would be 6000-7000 emails to review. FJW indicated to the Court in previous motions that substantially more emails were produced in the original CD'S; however, counsel for the trustee informed FJW that the original production was incorrect and included many more emails than were intended to be produced. With that in mind, and with the understanding that, again, there would be approximately 6,000 emails produced, FJW entered into an agreement as to privilege log production time. Yet, the total emails actually produced total at least 24,000. Many of the email are privileged. It is physically impossible to review all of these emails in 15 days, not to mention EFTA00595517 creating a privilege log from all of these emails (a document that itself could be a hundred pages long or more). This task would force the operation of FJW to come to a halt and require every attorney and staff member to stop everything and dedicate 100% of their time to creating this privilege log at a great cost to FJW. An expeditious hearing and ruling on this Motion is thus needed prior to December 28, 2010, so that FJW will not risk noncompliance with this Court's orders regarding production of the privilege log. 2. Production of the Log Now Makes No Sense Furthermore, staying production of the privilege log makes good sense. As set forth above, two state court motions have been properly presented, and Edwards is requesting that this Court merely allow the state court to rule on properly presented motions regarding how to proceed in its own case. So as a simple matter of federal-state comity, this Court should stay enforcement of its order for a short period of time. A short stay would not harm anyone and would likely lead to a rapid resolution of the issue. If the state court agrees either to grant the motion for summary judgment or to narrow the scope of subpoenas, it would essentially obviate the need for the Bankruptcy Court to rule at all on any issues dealing with the scope of the subpoena or the privilege issues that must ultimately be decided by the state court. On the other hand, if the state court rejects the motions, then LM agrees to produce the privilege log as directed. In either case, the matter will be quickly resolved in a matter of weeks. And only by leaving the issue up to the state court can duplication and potential unfair burden be avoided. A short delay of a few weeks to the other side will cause no prejudice. B. Certification Under Rule 9075-1(B) The undersigned that a bona fide effort was made to resolve this matter without a hearing, but was unsuccessful. EFTA00595518  WHEREFORE, FJW on behalf of LM respectfully requests that this Court stay further enforcement of its court order compelling production of a privilege log by FJW pending further rulings on the Summary Judgment Motion and Motion for Protective Order in the state court action where Epstein has chosen to file his lawsuit. I HEREBY CERTIFY that a true and correct copy of the foregoing was served electronically to the debtor, the attorney for the debtor, the trustee, all CM/ECF subscribers, and by email or U.S. Mail on those parties listed on the attached service list this 16th day of December, 2010. I HEREBY CERTIFY that I am admitted to the Bar of the United State District Court for the Southern District of Florida and I am in compliance with the additional qualifications to practice in this court set forth in Local Rule 2090-1(A). FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. By: /s/ Seth Lehrman Seth Lehrman FLBN 132896 Gary M. Farmer FLBN 914444 Brad J. Edwards FLBN 542075 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954)524-2820 (954)524-2822 Fax EFTA00595519  MASTER SERVICE LIST CASE NO.: 09-34791-BKC-RBR Hon. Robert Carney (ret.), Special Master 2281 Saratoga Lane Joseph L. Ackerman, Jr. Esquire West Palm Beach, FL 33409 Fowler White Burnett, M. 901 Phillips Point West Jack Scarola, Esq. 777 S Hagler Drive Searcy Denney Scarola Barnhart & Shipley West Palm Beach, FL 33401-6170 2139 Palm Beach Lakes Boulevard Phone: (561) 727-2423 West Palm Beach, Florida 33409 Fax: (561) 802-9976 Jack A. Goldberger, Esquire Atterbury, Goldberger & Weiss, M. The Honorable Herbert M. Stettin, Trustee 250 Australian Avenue South, Suite 1400 One Biscayne Tower West Palm Beach, FL 33401 Suite 3700 Phone: (561) 659-8300 Two South Biscayne Boulevard Fax: (561) 835-8691 Miami, Florida 33131 Fort Alison W. Lehr, Esq. Marianella Morales, Esquire Grisel Alonso, Esq. Authorized Agent For Joining Creditors Assistant United States Attorney Avenida Francisco de Miranda 99 E. 4th Street, 7th Floor Tone Provincial "A" Miami, Florida 33132 Piso 8 [email protected] Caracas, Venezuela [email protected] (VIA CM/ECF and EMAIL) (VIA CM/ECF and EMAIL) John H. Genovese, Esq. Jeffrey R. Sonn, Esq. Robert F idely, Esq. Sonn & Erez, PLC Theresa M. Van Vliet, Esq. Broward Financial Center Genovese Joblove & Battista, PA 500 E. Broward Boulevard Bank Of America Tower at International Suite 1600 Place Fort Lauderdale, Florida 33394 100 S.E. 2nd Street, Suite 4400 Miami, Florida 33131 (VIA CM/ECF and EMAIL) (VIA CM/ECF and EMAIL) Office of the US Trustee Kendall Coffey, Esq. 51 Southwest First Avenue Coffey Burlington, Suite 1204 Office in the Grove Miami, Florida 33130 Penthouse (VIA CM/ECF and EMAIL) 2699 South Bayshore Drive Miami, Florida 33133 (VIA CM/ECF and EMAIL) EFTA00595520 John G. Bianco, Esq. Thomas Tew, Esq. John M. Mulli, Esquire Tew-Cardenas, LLP Tripp Scott Four Seasons Tower 110 Southeast Sixth Street 15th Floor Fifteenth Floor 1441 Brickell Avenue Fort Lauderdale. Fl. 33301 Miami. Florida 33131-3407 (VIA CM/ECF and EMAIL) (VIA CM/ECF and EMAIL) Michael D. Seese, Esq. Hinshaw & Culbertson, LLP Conrad & Scherer, LLP 1 E Broward Blvd Ste 1010 633 South Federal Highway Ft Lauderdale. Florida 33301 Fort Lauderdale. FL 33301 (VIA CM/ECF and EMAIL) (VIA CM/ECF and EMAIL) Internal Revenue Service Centralized Insolvency Operations Honorable Jeffrey H. Sloman Box 21126 Acting U.S. Attorney Philadelphia, PA 19114 99 NE 4th Street (Via U.S. Mail) Miami, Fl 33132 (Via U.S. Mail) Internal Revenue Service Special Procedures - Insolvency Daniel Mink 7850 SW 6th Court Ovadia Levy Plantation, FL 33324 do Renato Watches, Inc (Via U.S. Mail) 14051 NW 14th Street Sunrise, Florida 33323 ial Asst. U.S. Attorney (Via U.S. Mail) .MS Box 9, Stop 8000 51 SW 1st Avenue, #1114 William George Salim, Jr. Miami, Fl 33130 Moskowitz Mandell & Salim (Via U.S. Mail) 800 Corporate Dr Ste 510 Fort Lauderdale. Florida 33334 United Healthcare Dept. CH 10151 (VIA CM/ECF and EMAIL) Palatine, IL 60055 (Via US Mail) USI Attn: Anthony Gruppo Special Asst. U.S. Attorney 200 West Cypress Creek Road IRS District Counsel Suite 500 1000 S. Pine Island Rd., Ste 340 Fort Lauderdale, FL 33309 Plantation, FL 33324-3906 [email protected] (Via U.S. Mail) (VIA EMAIL) EFTA00595521 The Honorable Eric H. Holder, Jr. Marc Nurik, Esq. Attorney General of the U.S. 1 East Broward Blvd 950 Pennsylvania Avenue, NW Room 4400 Suite 700 Washington, DC 20530-0001 Fort Lauderdale FL 33301 (Via U.S. Mail) (VIA EMAIL) Mark Bloom, Esq. John B. Hutton, Esq. BAST AMRON LLP Greenberg Traurig, LLP SunTrust International Center 1221 Brickell Avenue One Southeast Third Avenue Miami FL 33131 Suite 1440 Miami Florida 33131 (VIA CM/ECF and EMAIL) (VIA CM/ECF and EMAIL) Robert D. Critton, Esq. Burman, Critton, Luttier & Coleman 303 Banyan Blvd., Suite 400 The Florida Bar West Palm Beach. FL 33401 Adria E. Quintela, Esq. Alan Anthony Pascal, Esq. (VIA CM/ECF and EMAIL) Lake Shore Plaza II 1300 Concord Terrace, Suite 130 Roth & Scholl Sunrise, FL 33323 Attn: Jeffrey C. Roth, Esq. [email protected] Attorneys For Creditor Blue [email protected] Capital Us East Coast Properties, (VIA CM/ECF and EMAIL) 866 South Dixie Highway Coral Gables, Fl 33146 Micheal W. Moskowitz, Esq. 800 Corporate Drive, Suite 500 (VIA CM/ECF and EMAIL) Ft. Lauderdale, FL 33234 Rogers, Morris & Ziegler, LLP (VIA CM/ECF and EMAIL) 1401 East Broward Blvd Suite 300 Francis L. Carter, Esq. Fort Lauderdale, FL 33301 Katz Barron Squitero Faust 2699 S. Bayshore Drive, 7th Floor (VIA CM/ECF and EMAIL) Miami. Florida 33133 Arthur C. Neiwirth, Esq. (VIA CM/ECF and EMAIL) One E. Broward Blvd., Suite 1400 Ft. Lauderdale, FL 33301 Bradley S. Shraiberg, Esq. 2385 NW Executive Drive (VIA CM/ECF and EMAIL) Suite 300 Boca Raton. Florida 3 431 EFTA00595522 Ira Sochet, Trustee (VIA CM/ECF and EMAIL) Revocable Intervivos Trust of Ira Sochet do Phil Hudson, Esq. Henry S. Wulf, Esq. 200 South Biscayne Blvd, Suite 3600 CARLTON FIELDS, •. Miami, Florida 33130 525 Okeechobee Blvd., Suite 1200 E-Mail: West Palm Beach. Florida 33401 (VIA CM/ECF and EMAIL) E-Mail: (VIA CM/ECF and EMAIL) Coquina Investments EMESS Capital, LLC do Patricia A. Redmond, Esq. do Bruce A. Katzen, Esq. 150 West Flagler Street, Suite 2200 201 S. Biscayne Blvd., 17th Hoor Miami, Florida 33130 Miami, Florida 33131 E-Mail: E-Mail: (VIA CM/ECF and EMAIL) (VIA CM/ECF and EMAIL) Michael I. Goldberg, Esq. Las Olas Centre - Suite 1600 Steven J. Solomon Esq. 350 East Las Olas Blvd Gray Robinson, S. Fort Lauderdale FL 33301 1221 Brickell Ave, Suite 1600 E-Mail: Miami, Florida 33131 E-Mail steven.solomonegray-robinson. (VIA CM/ECF and EMAIL) com (VIA CM/ECF and EMAIL) LMB Funding Group do Robert C. Furr, Esq. Peter F. Valori, Esq. 2255 Glades Road, Suite 337W DAMIAN & VALORI LLP Boca Raton, Florida 33431 1000 Brickell Avenue, Suite 1020 E-Mail: Miami, FL 33131 (VIA CM/ECF and EMAIL) E-mail: (VIA CM/ECF and EMAIL) Lawrence A. Gordich, Esq. Melissa Alagna, Esq. Canon Financial Services, Inc. SEGALL/GORDICH 158 Gaither Drive, #200 801 Brickell Avenue, Suite 900 Mount Laurel, NJ 08054 Miami, Florida 33131 (Via US Mail) Email: Email: CIT Technology Financing Services I, (VIA CM/ECF and EMAIL) LLC 10201 Centurion Parkway North Broward County - Attn: Hollie N. Hawn, Esq. Jacksonville, FL 32256 Government Center (Via US Mail) 115 South Andrews Avenue Fort Lauderdale, FL 33301 Gibraltar Private Bank & Trust E-Mail: [email protected] Company 10 EFTA00595523 (VIA CM/ECF and EMAIL) 220 Alhambra Circle, Suite 500 Leon County Tax Collector Coral Gables, FL 33134 315 S. Calhoun Street, Suite 210 (Via US Mail) Tallahassee, FL 32301 (Via US Mail) Inter-Tel Leasing, Inc. 1140 West Loop North Miami-Dade County Tax Collectors Houston, TX 77055 140 West Flagler Street, 14th Floor (Via US Mail) Miami, FL 33130 (Via US Mail) Florida Department of Revenue 501 S. Calhoun Street Palm Beach County Tax Collector Room 201 ■. Box 3715 Carlton Building West Palm Beach, FL 33402-3715 Tallahassee, FL 32399 (Via US Mail) (Via US Mail) THE LAW OFFICES OF GEOFFREY D. ITTLEMAN, Roderick F. Coleman, Esq. 440 North Andrews Avenue 400 South Dixie Highway, Suite 121 Fort Lauderdale, Florida 33301 Boca Raton. FL 33432 (Via US Mail) (VIA CM/ECF and EMAIL) Carpenter & Berger, PL 6400 N. Andrew Ave, suite 370 Mark S. Haltzman, Esq. Fort Lauderdale, FL 33309 Lamm Rubenstone, LLC (Via US Mail) 3600 Horizon Blvd, Suite 200 Trevose, PA 19053 Frank F. McGinn, Esq. Bartlett Hackett Feinberg, ■. (VIA CM/ECF and EMAIL) 155 Federal Street, 9th Floor Boston, MA 02110 Robert C. Buschel, Esq. 100 S.E. Third Ave, Suite 1300 (VIA CM/ECF and EMAIL) Fort Lauderdale, FL 33394 Darol H. M. Carr, Esq. (VIA CM/ECF and EMAIL) 99 Nesbit Street Punta Gorda. FL 33950 Berkowitz Dick Pollack & Brant Certified Public Accountants & Consultants, (VIA CM/ECF and EMAIL) LLP 200 S Biscayne Boulevard, Sixth Floor Jane A. Bee, Esq. Miami, FL 33131-2310 Blank Rome LLP Attn: Richard Pollack 130 North 18th Street (Via Email and U.S. Mail) Philadel hia PA 1 103-6998 11 EFTA00595524 (VIA EMAIL) MELAND RUSSIN & BUDWICK, Melinda S. Thornton, Esq. 3000 Wachovia Financial Center Assistant County Attorney 200 South Biscayne Boulevard County Attorney's Office Miami, Florida 33131 2810 Stephen P. Clark Center Attn: James C. Moon Es . 111 M. First Street Miami, Fl 33128-1993 Attn: Peter D. Russin Es . Email: [email protected] (VIA CM/ECF and EMAIL) Attn: Michael S. 31idwick wEs . SLATKIN & REYNOLDS, E. (VIA CM/ECF and EMAIL) Attorneys for Russell Adler and Katie Adler One East Broward Boulevard, Suite 609 Gary S. Blake, Esq. Fort Lauderdale. Florida 33301 1499 W. Palmetto Park Rd, Suite 300 Boca Raton, FL 33486 (VIA CM/ECF and EMAIL) [email protected] (VIA CM/ECF and EMAIL) ASSOULINE & BERLOWE, 213 East Sheridan Street, Ste. 3 Maryann Gallagher, Esq. Dania Beach, FL 33004 CURTIS, MALLET-PREVOST, Attn: Eric N. Assouline, Esq. COLT & MOSLE LLP 101 Park Avenue (VIA CM/ECF and EMAIL) New York, NY 10178-0061 E-mail: Steven J. Reisman, Esq. (Via Email and U.S. Mail) CURTIS, MALLET-PREVOST, COLT & MOSLE LLP ILEANA CRUZ BONGINI, ESQ. 101 Park Avenue New York NY 10178-0061 STEARNS WEAVER MILLER E-mail: WEISSLER ALHADEFF & SITTERSON, (Via Email and U.S. Mail) Coquina Investments Museum Tower, Suite 2200 Turner P. Smith, Esq. 150 West Flagler Street CURTIS, MALLET-PREVOST, COLT & Miami, Florida 33130 MOSLE LLP (VIA CM/ECF and EMAIL) 101 Park Avenue New York. NY 10178-0061 Lynn Maynard Gollin E-mail: (Via Email and U.S. Mail) Gordon & Rees LLP Four Seasons Tower, 15th floor Heather L. Ries, Esq. 1441 Brickell Avenue Fox Rothschild, LLP Miami, FL 33131 222 Lakeview Ave, Suite 700 (VIA CM/ECF and EMAIL) West Palm Beach. 33401 12 EFTA00595525 (VIA CM/ECF and EMAIL) Paul J. McMahon, Esq. Paul Joseph McMahon, M. 2840 S.W. Third Ave Miami Florida 3312 (VIA CM/ECF and EMAIL) Robert P. Avolio, Esq. Crossroads Corporate Center 3150 Brunswick Pike, Ste. 120 Lawrenceville. NJ 08648 (Via Email and U.S. Mail) Mark S. 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