EFTA01100999.pdf

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff, vs. SCOTT ROTI [STEIN, individually, BRADLEY J. EDWARDS, individually, and L.M., individually, JUL 1 9 2011 Defendants. MOTION FOR LEAVE TO AMEND TO ASSERT A CLAIM FOR PUNITIVE DAMAGES Defendant, Bradley J. Edwards, Esq., by and through his undersigned counsel and pursuant to Rule 1.190(f), Florida Rules of Civil Procedure, hereby moves for leave to amend to assert a claim for punitive damages, and in support thereof relies upon the following evidence in the record and such additional evidence as is herein proffered*: I. INTRODUCTION The pleadings, discovery taken to date, and the evidence proffered with this motion show that a reasonable basis exists to support the recovery of punitive damages against the Counter- Defendant, Jeffrey Epstein. Not only is there an absence of competent evidence to demonstrate that Edwards participated in any fraud against Epstein, the evidence uncontrovertibly demonstrates the propriety of every aspect of Edwards's involvement in the prosecution of legitimate claims against Epstein and the fact that the sole basis for the assertion of the spurious claims filed against Edwards was an attempt to intimidate Edwards into abandoning EFTA01100999 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 2 of 27 the legitimate claims Edwards was prosecuting against Epstein on behalf of victims of Epstein's pattern of criminal sexual abuse of minors. Epstein sexually abused three clients of Edwards — L.M., E.W., and Jane Doe — and Edwards properly and successfully represented them in a civil action against Epstein. Nothing in Edwards's capable and competent representation of his clients could serve as the basis for a civil lawsuit against him. Allegations about Edwards's participation in or knowledge of the use of the civil actions against Epstein in a "Ponzi Scheme" were not supported by any competent evidence and could never be supported by competent evidence as they are entirely false and Epstein never had any reason to believe otherwise. The dismissal of the unsupported, unsupportable and sensational allegations that Edwards was a knowing participant in a massive criminal fraud and the subsequent abandonment of those allegations is further confirmation that no reasonable basis ever existed to support any belief in the truth of those allegations. A. Epstein's Complaint Epstein's Complaint essentially alleged that Epstein was defrauded by Edwards, acting in concert with L.M. (a minor female who was sexually abused by Epstein) and Scott Rothstein (President of the Rothstein Rosenfeldt Adler law firm ("RRA") where Edwards worked for a short period of time). Epstein appears to have alleged that Edwards joined L.M. and Rothstein in fabricating sexual assault cases against Epstein to "pump" the cases to Ponzi scheme investors. As described by Epstein, investor victims were told by Rothstein that three minor girls who were sexually assaulted by Epstein: LM., E.W., and Jane Doe were to be paid up-front money to prevent those girls from settling their civil cases against Epstein. In Epstein's view, these child sexual assault cases had "minimal value" (Complaint at 42(h)), EFTA01101000 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 3 of 27 and Edwards's refusal to force his clients to accept modest settlement offers was claimed to breach some duty that Edwards owed to Epstein. Interestingly, Epstein never states that he actually made any settlement offers. Even more interesting, all of the allegations of Edwards' knowing involvement in Rothstein's fraud disappeared from Epstein's first Amended Complaint along with the claims for civil remedies for criminal conduct and Florida RICO violations. This is a clear admission that no probable cause existed to support any of those allegations and claims to begin with. The supposed "proof of the Complaint's allegations against Edwards includes Edwards's alleged contacts with the media, his attempts to obtain discovery from high-profile persons with whom Epstein socialized, and use of "ridiculously inflammatory" language in arguments in court (Complaint at 42(e)). Remarkably, Epstein has filed such allegations against Edwards despite the fact that Epstein had sexually abused each of Edwards's clients and others while they were minors. Indeed, in recent discovery Epstein has asserted his Fifth Amendment privilege rather than answer questions about the extent of the sexual abuse of his many victims. Even more remarkably, since filing his suit against Edwards, Epstein has now settled the three cases Edwards handled for an amount that Epstein insisted be kept confidential. Without violating the strict confidentiality terms required by Epstein, the cases did not settle for the "minimal value" that Epstein suggested in his Complaint. Because Epstein relied upon the alleged discrepancy between the "minimal value" Epstein ascribed to the claims and the substantial value Edwards sought to recover for his clients, the settlement amounts Epstein voluntarily agreed to pay while these claims against Edwards were pending will be disclosed to the court in camera. Of course, those false allegations have also now disappeared from the EFTA01101001 Case No. 502009CA0408007OOOCMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 4 of 27 most recent Amended Complaint, but the amendment does not erase the fact that the baseless allegations were made. B. Summary of the Argument The claims against Bradley J. Edwards, Esq., were patently frivolous for at least two separate reasons. First, because Epstein has elected to hide behind the shield of his right against self incrimination to preclude his disclosing any relevant information about the criminal activity at the center of his claims, he is barred from prosecuting this case against Edwards. Under the well-established "sword and shield" doctrine, Epstein cannot seek damages from Edwards while at the same time asserting a Fifth Amendment privilege to block relevant discovery. The filing of a case seeking affirmative relief when there was no intention at the time of filing to comply with the discovery obligations arising from such filing is compelling evidence that the case was filed for reasons unrelated to obtaining the relief specified in the Complaint. Second and most fundamentally, Epstein's lawsuit was never supported by probable cause to believe any of the spurious accusations on which it was based, each and every one of which is directly contradicted by all of the record evidence. From the beginning, Edwards diligently represented three victims of sexual assaults perpetrated by Epstein. As explained in detail below, all of Edwards's litigation decisions were grounded in proper litigation judgment about the need to pursue effective discovery against Epstein, particularly in the face of Epstein's stonewalling tactics. Edwards's successful representation finally forced Epstein to settle and pay appropriate damages. Effective and proper representation of child victims who have EFTA01101002 Case No. 502009CA0408002OOOUvIBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 5 of 27 been repeatedly sexually assaulted cannot form the basis of a separate, "satellite" lawsuit, since even improper conduct in the course of the prosecution of a lawsuit may not form the basis of a separate claim by virtue of the absolute bar of the litigation privilege. Filing a claim known to be barred by absolute privilege is further evidence that the claim was filed for reasons other than in a legitimate effort to obtain the relief sought in the Complaint. The truth is the record is entirely devoid of any evidence to support Epstein's claims and is completely and consistently corroborative of Edwards's sworn assertion of innocence. Put simply, Epstein made allegations that had and have no basis in fact. He included those allegations in a lawsuit that was and is barred by both the sword-shield doctrine and the absolute litigation privilege. His lawsuit was merely a desperate measure by a serial pedophile to prevent being held accountable in compensatory and punitive damages for repeatedly sexually abusing minor females. He was trying also to shut down an investigation effort by Edwards that threatened to expose him to more criminal charges and harsher penalties. Epstein's ulterior motives in filing and prosecuting this lawsuit are blatantly obvious. Epstein's behavior is another clear demonstration that he feels he lives above the law and that because of his wealth he can manipulate the system and pay for lawyers to do his dirty work - even to the extent of having them assert baseless claims against other members of the Florida Bar. Epstein's Complaint against Edwards and LM is nothing short of a far-fetched fictional fairy-tale with absolutely no evidence whatsoever to support his preposterous claims. It was his last ditch effort to escape the public disclosure by Edwards and his clients of the nature, extent, and sordid details of his life as a serial child molester. EFTA01101003 Case No. 502009CA040800XXXXMBAG Edwards Motion for leave to Amend To Assert a Claim for Punitive Damages Page 6 of 27 ARGUMENT IL THE PROFERRED FACTS ESTABLISH THAT EDWARDS'S CONDUCT COULD NOT POSSIBLY FORM THE BASIS OF ANY LIABILITY IN FAVOR OF EPSTEIN This is not a complicated case for punitive damages because there is compelling and unrebutted evidence that each and every one of Epstein's claims against Edwards lacks any merit whatsoever. A. Edwards Was Simply Not Involved in the Rothstein Ponzi Scheme. The bulk of Epstein's claims against Edwards hinged on the premise that Edwards was knowingly involved in a Ponzi scheme run by Scott Rothstein. For example, Epstein alleged generally that "Edwards's... actions constitute a fraud upon Epstein as [Rothstein, Rosenfeldt, and Adler], [Scott] Rothstein and the Litigation Team represented themselves to be acting in good faith and with the best interests of their clients in mind at all times when in reality, [Edwards was] . . . acting in furtherance of the investment or Ponzi scheme described herein." Complaint ¶50. Similar broad allegations are scattered willy-nilly throughout the Complaint, although none of the allegations provide any substance as to how Edwards might have assisted the Ponzi scheme. See, e.g., id at TT 23, 24, 5, 27, 28, 42, 50. In any event, these allegations all fail for one straightforward reason: Edwards was simply not involved in any Ponzi scheme. He has provided sworn testimony and an affidavit in support of that assertion, and there is not (and could never be) any credible contrary evidence. Edwards has now been deposed at length in this case. As his deposition makes clear, he had no knowledge of any fraudulent activity in which Scott Rothstein was involved. See, e.g., Edwards Depo. at 301-02 (Q: " . . . [W]ere you aware that Scott Rothstein was trying to market Epstein cases ... ?" A: "No."). EFTA01101004 Case No. 502009CA040800>OCXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 7 of 27 Edwards has supplemented his deposition answers with an Affidavit that declares in no uncertain terms his lack of involvement in any fraud perpetrated by Rothstein. See, e.g., Edwards Affidavit attached to Statement of Undisputed Material Facts as Exhibit "N" at 18-10, ¶20, 122-23. Indeed, no one could reasonably believe that Edwards was involved in the scheme, as Edwards joined RRA well after Rothstein began his fraud and would have been already deeply in debt. In fact, the evidence of Epstein's crimes is now clear, and Edwards's actions in this case were entirely in keeping with his obligation to provide the highest possible quality of legal representation for his clients to obtain the best result possible. In view of this clear evidence rebutting all allegations against him, Epstein must at least establish that he had a good faith basis to support his untrue allegations. By choosing to assert his Fifth Amendment privilege to remain silent, he obviously fails to meet that burden. Indeed, when asked at his deposition whether he had any evidence of Edwards's involvement, Epstein declined to answer, purportedly on attorney-client privilege grounds: Q. I want to know whether you have any knowledge of evidence that Bradley Edwards personally ever participated in devising a plan through which were sold purported confidential assignments of a structured payout settlement?... A. I'd like to answer that question by saying that the newspapers have reported that his firm was engaged in fraudulent structured settlements in order to fleece unsuspecting Florida investors. With respect to my personal knowledge, I'm unfortunately going to, today, but I look forward to at some point being able to disclose it, today I'm going to have to assert the attorney/client privilege. See Deposition of Jeffrey Epstein, Mar. 17, 2010 (hereinafter "Epstein Depo.") at 67-68. EFTA01101005 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 8 of 27 B. Epstein Did Not Suffer Any Hann from Allegedly Fraudulent Presentations to Investors. At various points in his Complaint, Epstein seems to have alleged that he can pursue a claim against Edwards because Rothstein defrauded third-party investors. Epstein alleges that various investors were given fraudulent pitches by Rothstein and were bilked out of money as a result. See, e.g., Complaint I 28, 29, 30. Even assuming that the allegations about Rothstein are true (and they certainly are not challenged by this Motion), Edwards is still obviously entitled to assert a claim for punitive damages for the additional reason that Epstein was not harmed by these fraudulent pitches and had no plausible basis to claim that he was. Epstein was obviously not present during these presentations. Indeed, as review of Epstein's Complaint makes clear, he did not even know about the fraud until it became public knowledge through the mass media. See, e.g., Complaint 116 ("The details of this fraudulent scheme are being revealed on a daily basis through various media report and court documents."). To proceed on any cause of action, Epstein is required to prove harm. See, e.g., Borten v. White Mountains Ins. Group, Ltd., 2 So.3d 1041, 1047 (Fla. 4'h DCA 2009); S & Investments v. Payless Flea Market, Inc., 36 So.3d 909, 917 (Fla. 4'h DCA 2010). Epstein was not harmed by Rothstein's misrepresentations to other people that he knew nothing about. C. Epstein's Allegations Against Edwards Were and Are Unfounded and Not Actionable in Any Event. At various points in his Complaint Epstein inconsistently recognized that Edwards was not involved in any Rothstein Ponzi scheme. Therefore, seemingly as a fallback, Epstein alleged without explanation that Edwards "should have known" about the existence of this concealed EFTA01101006 Case No. 502009CA0408007OOaMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 9 of 27 Ponzi scheme. For example, in his Complaint Epstein alleged: "Upon information and belief, Edwards knew or should have known Rothstein was utilizing RRA as a front for the massive Pont scheme . . . ." Complaint at 26 (emphasis added). Among other problems, this fallback negligence position suffered the fatal flaw that it does not link at all to the five counts in the complaint, all of which alleged intentional fraud or conspiracy. The five counts in the Complaint all allege criminal — i.e., intentional — activity. The five counts are: Count I — Florida Civil Remedies for Criminal Practices Act (FCRCPA); Count 2 — Florida RICO; Count 3 — Abuse of Process; Count 4 — Fraud; and Count 5 — Conspiracy to Commit Fraud. To take Count 1 as an example, Epstein alleges that Edwards "engaged in a pattern of criminal activity as defined in §772.102(3) and (4), Fla Stat. (2009)." Epstein then alleges (without any elaboration) that Edwards committed such crimes as fraud, extortion, and perjury — crimes that are listed as actionable under the FCRCPA. See Fla. Stat. Ann. §772.102(1)(a). Crimes such as these require proof of criminal intent. Proving the crime of perjury, for example, requires proof that "testimony was in fact false testimony, and that [the defendant] knew of its falsity and willfully and with deliberation swore to it as true." Rader v. State, 52 So.2d 105, 108 (Fla. 1951) (emphasis added). Proving the crime of fraud requires proof that the defendant acted with "intent to defraud" Pizzo v. State, 455. So.2d 1203, 1207 (Fla. 2006) (emphasis added); see also Curd v. Mosaic Fertilizer, LLC, 39 So.3d 1216, 2010 WL 2400384 at *15 (describing fraud, conversion, civil theft, and abuse of process as "intentional torts" that require "proof of intent"). Moreover, not only do the underlying crimes require proof of criminal intent, but the FCRCPA itself requires proof that a defendant must have acted "with criminal intent," Fla. Stat. Ann. §772.103(1), or "conspire[d]," §772.103(4), in EFTA01101007 Case No. 502009CA040800XXXXMEBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 10 of 27 order for a cause of action to proceed. Nothing in the statute allows a claim to move forward on a mere allegation of negligence. Epstein's negligence claim is also deficient because it simply fails to satisfy the requirements for a negligence cause of action: "Four elements are necessary to sustain a negligence claim: 1. a duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks. 2. A failure on the [defendant's] part to conform to the standard required: a breach of the duty ... . 3. A reasonably close causal connection between he conduct and the resulting injury. This is what is commonly known as 'legal cause,' or 'proximate cause,' and which includes the notion of cause in fact. 4. Actual loss or damage." Curd v. Mosaic Fertilizer, LW, 39 So.3d 1216, 2010 WL 2400384 at *9 (Fla. 2010). Epstein does not allege a particular duty on the part of Edwards that has been breached. Nor does Epstein explain how any breach of the duty might have proximately caused him actual damages. Finally, for the sake of completeness, it is worth noting briefly that no reasonable basis existed to claim Edwards was negligent in failing to anticipate that a managing partner at his law firm would be involved in an unprecedented Ponzi scheme. Scott Rothstein deceived not only Edwards but also more than 60 other reputable lawyers at a major law firm. Cf . Sun Sentinel, Fort Lauderdale, Dec. 11, 2009, 2009 WLNR 25074193 at *1 ("Sure, some outlandish John Grisham murder plot[s] sound far-fetched. But if you asked me a few months ago if Scott Rothstein was fabricating federal court orders and forging a judge's signature on documents to allegedly fleerte his friends, as federal prosecutors allege, I would have said that was far-fetched, too."). No reasonable lawyer could have expected that a fellow member of the bar would have been involved in such a plot. Nobody seemed to know of Rothstein's Ponzi EFTA01101008 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 11 of 27 scheme, not even his best friends, or the people he did business with on a daily basis, or even his wife. Many of the attorneys at RRA had been there for years and knew nothing. Edwards was a lawyer at RRA for less than eight months and had very few personal encounters with Rothstein during his time at the finn, yet Epstein claims that he should have known of Rothstein's intricate Ponzi scheme. No doubt for this reason the U.S. Attorney's Office has now listed Edwards as a "victim" of Rothstein's crimes. See Statement of Undisputed Facts filed contemporaneously. Epstein's Complaint does not offer any specific reason why anyone could conclude that Edwards was negligent, and he chose not to offer any explanation of his claim at his deposition. D. Edwards Was Properly Pursuing the Interests of His Three Clients Who Had Been Sexually Abused by Epstein. The next claim that Epstein advances is that Edwards somehow improperly enhanced the value of the three civil cases he had filed against Epstein. Edwards represented three young women — L.M., E.W., and Jane Doe — by filing civil suits against Epstein for his sexual abuse of them while they were minors. Epstein purports to find a cause of action for this by alleging that Edwards somehow was involved in "'pumping' these three cases to investors." Complaint at 1151; see also id. at11136, 41, 42(f), 42(k) (similar allegations of "pumping" the cases). As just explained, to the extent that Epstein is alleging that Edwards somehow did something related to the Ponzi scheme, those allegations fail for the simple reason that Edwards was not involved in any such scheme. Edwards, for example, could not have possibly "pumped" the cases to investors when he never participated in any communication with EFTA01101009 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 12 of 27 investors as has now been confirmed under oath not only by Edwards but by every investor deposed by Epstein. Epstein's "pumping" claims, however, fail for an even more basic reason: Edwards was entitled — indeed ethically obligated as an attorney — to secure the maximum recovery for his clients during the course of his legal representation. As is well known, "[a]s an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system." Ha. Rules of Prof. Conduct, Preamble. Edwards therefore was required to pursue (unless otherwise instructed by his clients) a maximum recovery against Epstein. Edwards, therefore, cannot be liable for doing something that his ethical duties as an attorney required nor can he be liable for conduct that falls squarely within the absolute protection of the litigation privilege. See the Fla. S. Ct.'s opinion in Echevarria attached. Another reason that Epstein's claims that Edwards was "pumping" cases for investors fails is that Edwards filed all three cases almost a year before he was hired by RRA or even knew of Scott Rothstein. Epstein makes allegations that the complaints contained sensational allegations for the purposes of luring investors; however, language in the complaints remained virtually unchanged from the first filing in 2008 and from the overwhelming evidence the Court can see for itself that all of the facts alleged by Edwards in the complaints were true. Epstein ultimately paid to settle all three of the cases Edwards filed against him for more money than he paid to settle any of the other claims against him. At Epstein's request, the terms of the settlements were kept confidential, but the Stipulation and Order of Dismissal in each of the cases required Epstein to bear all costs and fees incurred in his defense, thus precluding him from claiming those costs and fees as damages in any action against Edwards. EFTA01101010 Case No. 502009CA0408007OOCXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 13 of 27 The sum that he paid to settle all these cases is not filed with this pleading and will be provided to the court for in camera review. Epstein chose to make this payment as the result of a federal court ordered mediation process, which he himself sought (over the objection of Jane Doe, Edwards's client in federal court) in an effort to resolve the case. See Defendant's Motion for Settlement Conference, or in the Alternative, Motion to Direct Parties back to Mediation, Doe v. Epstein, No. 9:08-CV-80893 (S.D. Fla. June 28, 2010) (Marra, J.) (doe. #168) attached hereto as Exhibit "A". Notably, Epstein sought this settlement conference — and ultimately made his payments as a result of that conference - in July 2010, more than seven months after he filed this lawsuit against Edwards. Accordingly, Epstein could not have been the victim of any scheme to "pump" the cases against him, because he never paid to settle the cases until well after Edwards had left RRA and had severed all connection with Scott Rothstein (December 2009), and the scope of the Rothstein fraud was fully exposed.' In addition, if Epstein had thought that there was some improper coercion involved in, for example, Jane Doe's case, his remedy was to raise the matter before Federal District Court Judge Kenneth A. Marra who was presiding over the matter. Far from raising any such claim, Epstein simply chose to settle that case. He is therefore now barred not only by the litigation privilege but also by the doctrine of res judicata from somehow re-litigating what happened in (for example) the Jane Doe case. "The doctrine of res judicata makes a judgment on the merits conclusive 'not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action." AMEC Civil, LLC v. State Dept of Transp.,41 To further his effort to harass and intimidate Edwards, Epstein also filed a bar complaint with the Florida Bar against Edwards. The Florida Bar has dismissed that complaint. See Statement of Undisputed Facts. EFTA01101011 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 14 of 27 So.3d 235, 2010 WL 1542634 at *2 (Fla. V' DCA 2010) (quoting Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla. 1984). Obviously, any question of improper "pumping" of a particular case could have been resolved in that very case rather than now re-litigated in satellite litigation. E. Edwards is Immune From Any Claim For Abuse of Process Because He Acted Properly Within the Boundaries of the Law in Pursuit of the Legitimate Interests of his Clients. Epstein's Complaint also raised the claim of "abuse of process." Confusingly stated allegations appear to be related to those just discussed, but culminate in a separate cause of action — count 3 — alleging "abuse of process." An abuse of process claim requires proof of three elements: "(1) that the defendant made an illegal, improper, or perverted use of process; (2) that the defendant had ulterior motives or purposes in exercising such illegal, improper, or perverted use of process; and (3) that, as a result of such action on the part of the defendant, the plaintiff suffered damage." S & I Investments v. Payless Flea Market, Inc., 36 So.3d 909, 917 (Fla. 4'h DCA 2010) (internal citation omitted). In fact, Edwards has correctly stated this cause in his counterclaim against Epstein. While Edwards's claim is unassailable, Epstein cannot prove these elements and never had any good faith basis to believe he could. The first element of an abuse of process claim is that a defendant made "an illegal, improper, or perverted use of process." On the surface, Epstein's Complaint appears to contain several allegations of such litigation-related impropriety. On examination, however, each of these allegations amounts to nothing other than a claim that Epstein was unhappy with some discovery effort, motion or argument made by Edwards. This is not the stuff of an abuse of process claim, particularly where Epstein fails to allege that he was damaged as the EFTA01101012 Case No. 502009CA0408003OOOCMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page IS of 27 result of Edwards's pursuit of the claims against him beyond the self-inflicted losses that flowed from his own criminal conduct. See Marty v. Gresh, 501 So.2d 87, 90 (Fla. DCA 1987) (affirming summary judgment on an abuse of process claim where "appellant's lawsuit caused appellee to do nothing against her will"). In any event, none of the allegations of "improper" process was or ever could be supported because every action Edwards took was entirely proper. For purposes of completeness, the following is a point-by-point refutation of Epstein's allegations: • Complaint ¶42(a): Edwards properly included listed damages in Jane Doe's federal action of more than $50,000,000, because those were the damages that Edwards was going to seek at trial on behalf of Jane Doe. See Statement of Undisputed Facts. • Complaint ¶42(b): Edwards was entitled to help Jane Doe exercise her First Amendment rights to criticize the unduly lenient plea bargain he received in a criminal case, See Statement of Undisputed Facts, and criticizing what happened in the criminal case is not actionable in an unrelated civil case; • Complaint ¶ 42(c): Edwards only asked reasonable questions of Epstein at his deposition, all of which related to the merits of the case against Edwards. See Statement of Undisputed Facts. • Complaint ¶ 42(d): Edwards only pursued legitimate discovery designed to further the cases filed against Epstein. See Statement of Undisputed Facts. • Complaint ¶ 42(e): Edwards did not made "ridiculously inflammatory and sound- bite rich" statements, but rather made statements supported by the evidence. For example, there is ample evidence that Epstein has abused more than 400 children, See Statement of Undisputed Facts, a fact that Epstein has always invoked his Fifth Amendment right of silence regarding rather than elaborate. • Complaint ¶ 42(0: Edwards properly filed a motion seeking to restrain Epstein's fraudulent transfer of assets in federal court where Edwards had evidence that Epstein was titling cars and other assets in the names of other persons, See Statement of Undisputed Facts. EFTA01101013 Case No. 502009CA040800XXXX.MBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 16 of 27 Epstein also fails to meet the second element of an abuse of process claim: that Edwards had some sort of ulterior motive. The case law is clear that on an abuse of process claim a "plaintiff must prove that the process was used for an immediate purpose other than that for which it was designed." S&I Investments v. Payless Flea Market, Inc., 36 So.3d 909, 917 (Fla 4th DCA 2010) (citing Biondo v. Powers, 805 So.2d 67, 69 (Fla. 4th DCA 2002). As a consequence, "[w]here the process was used to accomplish the result for which it was intended, regardless of an incidental or concurrent motive of spite or ulterior purpose, there is no abuse of process." Id. (internal quotation omitted). Here, Edwards has fully denied any improper motive, See Statement of Undisputed Facts, and Epstein has no evidence of any such motivation. Indeed, it is revealing that Epstein chose not to ask even a single question about this subject during the deposition of Edwards. In addition, all of the actions that Epstein complains about were in fact used for the immediate purpose of furthering the lawsuits filed by L.M., E.W., and Jane Doe. In other words, these actions all "accomplished the results for which they were intended" -- whether it was securing additional discovery or presenting a legal issue to the court handling the case -- ultimately leading to the full recovery of damages for the victims of Epstein's molestations. F. Pursuit of Discovery Concerning Epstein's Friends Was Reasonably Calculated to Lead to Relevant and Admissible Testimony About Epstein's Abuse of Minor Girls. Epstein alleged that Edwards improperly pursued discovery from some of Epstein's close friends. Such discovery, Epstein claims, was improper because Edwards knew that these individuals lacked any discoverable information about the sexual assault cases against Epstein. EFTA01101014 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 17 of 27 Each of the friends of Epstein was reasonably believed to possess discoverable information. The undisputed facts show the following with regard to each of the persons referenced in each of Epstein's now dismissed complaints: • Complaint ¶38(i): With regard to Donald Trump, Edwards had sound legal basis for believing Mr. Trump had relevant and discoverable information. See Statement of Undisputed Facts. • Complaint ¶38(ii): With regard to Alan Dershowitz (Harvard Law Professor), Edwards had sound legal basis for believing Mr. Dershowitz had relevant and discoverable information. See Statement of Undisputed Facts. • Complaint ¶38(iii): With regard to former President Bill Clinton, Edwards had sound legal basis for believing former President Clinton had relevant and discoverable information. See Statement of Undisputed Facts. • Complaint ¶38(iv): With regard to former Sony Record executive Tommy Mottola, Edwards was not the attorney that noticed Mr. Mottola's deposition. See Statement of Undisputed Facts. • Complaint ¶38(v): With regard to illusionist David Copperfield, Edwards had sound legal basis for believing Mr. Copperfield had relevant and discoverable information. See Statement of Undisputed Facts. • Complaint ¶40(i): With regard to former New Mexico Governor Bill Richardson, Edwards had sound legal basis for naming Former New Mexico Governor Bill Richardson on his witness list. See Statement of Undisputed Facts. As to the existence of a reasonable basis for pursuing discovery from all of the above, see also the filed transcript of the recorded conversation with It is worth noting that the standard for discovery is a very liberal one. To notice someone for a deposition, of course, it is not required that the person deposed actually end up producing admissible evidence. Otherwise, every deposition that turned out to be a "false alarm" would lead to an abuse of process claim. Moreover, the rules of discovery themselves provide that a EFTA01101015 Case No. 502009CA0408007CCOCMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 18 of 27 deposition need only be "reasonably calculated to lead to the discovery of admissible evidence." Fla. It Civ. P. 1.280(b) (emphasis added). Moreover, the discovery that Edwards pursued has to be considered against the backdrop of Epstein's obstructionist tactics. As the Court is aware, in both this case and all other cases filed against him, Epstein has asserted his Fifth Amendment privilege rather than answer any substantive questions. Epstein has also helped secure attorneys for his other household staff who assisted in the process of recruiting his minor female victims. Those staff members in turn also asserted their Fifth Amendment rights rather than explain what happened behind closed doors in Epstein's mansion in West Palm Beach. See Statement of Undisputed Facts. It is against this backdrop that Edwards followed up on one of the only remaining lines of inquiry open to him: discovery aimed at Epstein's friends who might have been outside of Epstein's sphere of influence and in a position to either directly confirm or circumstantially corroborate the fact that Epstein was sexually abusing young girls. In the context of the sexual assault cases that Edwards had filed against Epstein all which included the potential for the recovery of punitive damages, any act of sexual abuse had undeniable relevance to the case — even acts of abuse Epstein committed against minor girls other than L.M., E.W., or Jane Doe. Both federal and state evidence rules make acts of child abuse against other girls admissible in the plaintiffs case in chief as proof of "modus operandi" or "motive" or "common scheme or plan." See Fed. It Evid. 415 (evidence of other acts of sexual abuse automatically admissible in a civil case); Ha. Stat Ann. §90.404(b) (evidence of common scheme admissible); Williams v. State, 110 So.2d 654 (Fla. 1959) (other acts of potential sexual misconduct admissible). A second reason exists for making discovery of Epstein's acts of abuse of other minor girls admissible. Juries considering punitive damages issues are plainly entitled to consider "the existence EFTA01101016 Case No. 502009CA0408002OOCXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 19 of 27 and frequency of similar past conduct." TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 462 n.28 (1993). This is because the Supreme Court recognizes "that a recidivist may be punished more severely than a first offender . . [because] repeated misconduct is more reprehensible than an individual instance of malfeasance." BMW of North America, Inc. v. Gore, 517 U.S. 559, 577 (1996) (supporting citations omitted). In addition, juries can consider other similar acts evidence as part of the deterrence calculation in awarding punitive damages, because "evidence that a defendant has repeatedly engaged in prohibited conduct while knowing . . . that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law." Id. at 576-77. In the cases Edwards filed against Epstein, his clients were entitled to attempt to prove that Epstein "repeatedly engaged in prohibited conduct" — i.e., because he was a predatory pedophile, he sexually assaulted dozens and dozens of minor girls. The discovery of Epstein's friends who might have had direct or circumstantial evidence of other acts of sexual assault was accordingly entirely proper. G. Assertions that Edwards Should Have Known That the Three Cases Had "Minimal" Value Were and Are Clearly Spurious Because the Cases in Fact Had Spbstantial Value. A final claim made by Epstein is that Edwards "knew or should have known that their three filed cases were weak and had minimal value." Complaint ¶42(h). It is now no longer necessary to speculate about the value of the three cases. Epstein voluntarily paid to settle all three cases — a decision made after Rothstein's fraud had been discovered and fully revealed — and as a consequence of the decision to settle the cases, could not have been influenced by any fraud. Epstein has insisted that the sum he paid remain confidential. As such, the Settlement EFTA01101017 Case No. 502009CA040800XXYXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 20 of 27 Agreements have not been attached as an Exhibit, but can be shown to the Court in camera In light of the sum that was paid, no reasonable jury could now find that the cases had "minimal value." EPSTEIN'S LAWSUIT LACKED ANY LEGITIMATE PURPOSE FROM THE OUTSET BECAUSE OF HIS REFUSAL TO PARTICIPATE IN REASONABLE DISCOVERY. As is readily apparent from the facts of this case, Epstein filed a lawsuit intending to refuse to allow any real discovery about the merits of his case. Instead, when asked hard questions about whether he has any legitimate claim at all, Epstein has hidden behind the Fifth Amendment. As a result, under the "sword and shield doctrine" widely recognized in Florida caselaw, his suit must be dismissed. "[T]he law is well settled that a plaintiff is not entitled to both his silence and his lawsuit." Boys & Girls Clubs of Marion County, Inc. v. JA., 22 So.3d 855, 856 (Fla. 5th DCA 2009) (Griffin, J., concurring specially). Thus, "a person may not seek affirmative relief in a civil action and then invoke the Fifth Amendment to avoid giving discovery, using the Fifth Amendment as both a 'sword and a shield.' DePalma v. DePalma, 538 So.2d 1290, 1290 (Fla. 4th DCA 1989) (quoting DeLisi v. Bankers Insurance Co., 436 So.2d 1099 (Ha. 4th DCA 1983)). Put another way, "[a] civil litigant's fifth amendment right to avoid self-incrimination may be used as a shield but not a sword. This means that a plaintiff seeking affirmative relief in a civil action may not invoke the Fifth Amendment and refuse to comply with the defendant's discovery requests, thereby thwarting the defendant's defenses." Rollins Burdick Hunter of New York Inc. v. Euroclassic Limited, Inc., 502 So.2d 959 (Fla. 3id DCA 1983). EFTA01101018 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 21 of 27 Here, Epstein did precisely what the "well settled" law forbids. Specifically, he sought "affirmative relief' — i.e., forcing Edwards to pay money damages — while simultaneously precluding Edwards from obtaining legitimate discovery at the heart of the allegations that form the basis for the relief Epstein claimed to be seeking. As recounted more fully in the statement of undisputed facts, Epstein has refused to answer such basic questions about his lawsuit as: • "Specifically what are the allegations against you which you contend Mr. Edwards ginned up?" • "Well, which of Mr. Edwards' cases do you contend were fabricated?" • "Is there anything in L.M.'s Complaint that was filed against you in September of 2008 which you contend to be false?" • "I would like to know whether you ever had any physical contact with the person referred to as Jane Doe in that [federal] complaint?" • "Did you ever have any physical contact with E.W.?" • "What is the actual value that you contend the claim of E.W. against you has?" The matters addressed in these questions are the central focus of Epstein's claims against Edwards. Epstein's refusal to answer these and literally every other substantive question put to him in discovery has deprived Edwards of even a basic understanding of the evidence alleged to support claims against him. Moreover, by not offering any explanation of his allegations, Epstein is depriving Edwards of any opportunity to conduct third party discovery and opportunity to challenge Epstein's allegations. It is the clear law that "the chief purpose of our discovery rules is to assist the truth-finding function of our justice system and to avoid trial by surprise or ambush," Scipio v. State, 928 So.2d 1138 (Fla. 2006), and "full and fair discovery is essential to these important goals," McFadden v. EFTA01101019 Case No. 502009CA040800XXXXMBAG Edwards Motion for Leave to Amend To Assert a Claim for Punitive Damages Page 22 of 27 State, 15 So.3d 755, 757 (Ha. 4th DCA 2009). Accordingly, it is important for the Court to insure "not only compliance with the technical provisions of the discovery rules, but also adherence to the purpose and spirit of those rules in both the criminal and civil context" McFadden, 15 So.3d at 757. Epstein has repeatedly blocked "full and fair discovery," and obviously intended to do so from the day his claims against Edwards were filed—facts from which a reasonable inference can and must be drawn that he never intended to prosecute his spurious claims but only to use them for purposes of intimidation. IV. EDWARDS IS ENTITLED TO ADVERSE INFERENCES FROM EPSTEIN'S INVOCATION OF THE FIFTH AMENDMENT Epstein's repeated invocations of the Fifth Amendment raise adverse inferences against him that leave no possibility that a reasonable fact£mder could ever accept his allegations against Edwards. Given all of the inferences that arc to be drawn against Epstein, no reasonable finder of fact could conclude that Epstein was somehow the victim of improper civil lawsuits filed against him. Instead, a reasonable finder of fact could only find that Epstein was a serial molester of children who was being held accountable through legitimate suits brought by Edwards and others on behalf of the minor girls that Epstein victimized. Regardless of whether viewed in the context of a litigant seeking affirmative relief or simply defending claims, "[I]t is well-settled that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them." Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); accord Vasquez v. State, 777 So.2d 1200, 1203 (Fla. App. 2001). The reason for this rule "is both logical and utilitarian. A party may not trample upon the rights of others and then escape the consequences by invoking a constitutional privilege — at least not in a civil setting." Fraser v. EFTA01101020 Case No. 502009CAI340800XXXXMBAG Edwards Motion for Leavc to Amend To Assert a Claim for Punitive Damages Page 23 of 27 Security and Inv. Corp., 615 So.2d 841, 842 (Fla. 4th DCA 1993). And, in the proper circumstances, "'Silence is often evidence of the most persuasive character."' Fraser v. Security and Inv. Corp., 615 So.2d 841, 842 (Fla. 4'h DCA 1993) (quoting United States a rel. Bilokumsky v. Tod, 263 U.S. 149, 153-154 (1923) (Brandeis, J.). In the circumstances of this case, a reasonable finder of fact would have "evidence of the most persuasive character" from Epstein's repeated refusal to answer questions propounded to him. To provide but a few examples, here are questions that Epstein refused to answer and the reasonable inference that a reasonable finder of fact would draw: • Question not answered: "Specifically what are the allegations against you which y