EFTA01128700.pdf

IN THE CIRCUIT COURT OF THE 15T"
JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA

DRAFT 11/21/10 COMPLEX LITIGATION FLA.R.CIV. P. 1201

CASE NO. 50 2009CA 0400XXXXMB AG



JEFFREY EPSTEIN,

Plaintiff,

v.


SCOTT ROTHSTEIN, individually, BRADLEY
J. EDWARDS, individually, and
individually,

Defendants.




PLAINTIFF'S MOTION TO STRIKE EXHIBITS AND
ATTACHMENTS TO DEFENDANT
EDWARDS'S MOTION FOR SUMMARY JUDGMENT

Plaintiff Jeffrey Epstein ("Epstein") moves, pursuant to Rule 1.510 of the Florida Rules of

Civil Procedure, to strike the unswom and otherwise unauthenticated "Exhibits" and "Attachments"

to the allegedly "Undisputed Statement of Facts" filed and served by defendant Bradley J. Edwards

("Edwards") and upon which Edwards relies to support his Motion for Summary Judgment. The

specific grounds for this Motion are:

1. On September 22, 2010, Edwards served a Motion for Summary Judgment (the

"Summary Motion") seeking to have this Court conclude that there is no genuine issue of material

fact as to each count against him and to grant him judgment on the claims raised against him by

Epstein in this action.

2. Edwards filed a 37-page "Statement of Undisputed Facts," consisting of 120 separate

paragraphs, most of which are either not material at all or, where they are conceivably material, they




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are disputed. Arguably, only paragraphs 86 through 91 bear on the subject of this lawsuit.'

3. In support of these 120+ allegedly "undisputed" facts, Edwards served an eight inch

tall stack of "47 exhibits" and 22 "attachments" numbered respectively from "A" to "UU" and "1"

to "22". Collectively, we refer to these materials as the ("Supporting Papers").

4. Among these Supporting Papers are 22 transcripts of depositions or excerpts of

depositions — the "Attachments," most of which were taken prior to the filing of this action in 2009

and before. The other "Exhibits" are a compendium of unworn letters, pleadings and other court

filings, hearing transcripts, an unauthenticated copy of what purports to be a plea agreement between

Scott Rothstein and the government,' unsigned drafts, unsigned answers to interrogatories from

another case, New York Post and other media publications, items (such as phone messages) allegedly

garnered from Plaintiff and others pursuant to search warrants in criminal investigations of Plaintiff,

a purported copy of a visitor log from the Palm Beach County Sheriff's Office, flight logs, and other




Nevertheless, Edwards fills 35 pages with facts that are not material to any issue in this
case for the apparent purpose of prejudicing Plaintiff in this Court with a gratuitous and graphic
recount of conduct and alleged conduct not in issue in this case, such as Plaintiff's alleged sexual
exploits with clients of Edwards. There can be no other reason.

2 See Exhibit "SS." The statement of facts incorporated into the plea agreement refers
throughout to Rothstein and "other co-conspirators" without naming those others. It intimates that
others working in the Rothstein Rosenfeldt and Adler firm knew of the Ponzi scheme and conspired
to advance the criminal enterprise. Plaintiff believes Edwards is such a person, notwithstanding
Edwards production of an unswom form letter from a federal victim witness specialist identifying
him as a possible victim of Rothstein (exhibit `IT"), but has not yet been provided the documentary
evidence he has been seeking to use against Edwards.

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documents the materiality of which is not facially apparent.'

5. All of the Supporting Papers, except Exhibits "N," fail to conform to the Florida rules

of civil procedure and must be stricken.' The Supporting Papers have not been certified, verified

or properly authenticated.

6. The law in the Fourth District, as well as in Florida's other courts of appeal, clearly

and unconditionally provides that unauthenticated documentary evidence may not be relied on or

considered in support of a motion for summary judgment. See Hollywood Towers Condominium

Association, Inc. v. Hampton, 993 So. 2d 174, 175-176 (Fla. 4th DCA 2008) (unauthenticated

photocopies of check, letter and bank statement attached to motion for summary judgment could not

be used to support motion); Bifulco v. State Farm Mutual Auto. Ins. Co., 693 So. 2d 707, 710 (Fla.

4th DCA 1997) (trial court could not consider unswom or uncertified insurance documents attached

to motion for summary judgment); Mack v. Commercial Industrial Park Inc., 541 So. 2d 800 (Fla.




3 For example, Attachment "1" purports to be a 183-page deposition of Plaintiff in a case
styled v. Jeffrey Epstein then pending in this Court, but the copy of the transcript is not signed
and certified by the court reporter or otherwise authenticated and is therefore inadmissible.
Attachment "2" consists of an excerpt of 9-pages of the purported transcript of a deposition of a Jane
Doe which apparently in its entirety is more than 568 pages in length. Edwards included those pages
to support the statement that Jane Doe was abused at least 17 times. It actually does not support that
statement, but regardless, the excerpt is not in any way authenticated. Attachments 3 through 22
suffer from the same defect. The exhibits with the exception of "N" are no better.
4
This exhibit is the Affidavit of Defendant Edwards which appears to have been sworn in
conformance with Florida statutes, although much of what is sworn to is immaterial or disputed.
Attachment 15 is not certified, appears to be a complete transcript (not an excerpt) and bear the
signature of a court reporter, but it hardly material. See Statement of Undisputed Facts at paragraph
57. Exhibit "QQ" is a sworn affidavit; however, it consists almost entirely of hearsay and double
hearsay and must be stricken.

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4th DCA 1989) (contractual exhibits which were unaccompanied by an affidavit could not be

considered in support of motion for summary judgment)? In Bifulco, the court of appeal observed:

[lJt is unquestionably clear that the documents attached to Appellee's motion are not
sworn to or certified in any manner whatsoever, nor are they in proper admissible
form. They are not accompanied by any affidavit of a records custodian or other
proper person attesting to their authenticity or correctness. .. . They were received
without any foundation other than the representations of Appellee's counsel. In short,
rule 1.510(e), by its very language, excludes any document from the record on a
motionfor summaiyjudgment that is not one of the enumerated documents or is not
a certified attachment to a proper affidavit The documents in question in the case
before us, standing by themselves, are insufficient to satisfy the heavy burden
Appellee must meet in order to juste the granting ofsummayyjudgment in itsfavor.

693 So. 2d at 710 (emphasis added)?

7. Here, it is unquestionably and undeniably clear that none of the Supporting Papers

save two, are sworn or certified in any manner whatsoever.' They likewise are not accompanied by

an affidavit of a records custodian or other person attesting to their authenticity, completeness or

correctness. Each of these 67 Supporting Papers is therefore "insufficient" to support Defendant



s
Other courts of appeal have held the same. See, e.g., Nichols v. Preiser, 849 So. 2d478, 481
(Fla. 2d DCA 2003) (trial court could not consider letters that were not sworn or certified); First
Union National Bank ofFlorida v. Ruiz, 785 So. 2d 589, 591 (Fla. 5th DCA 2001) (unswom EEOC
letter did not satisfy procedural strictures inherent in Rule 1.510(e)); Brooker v. Sarasota, Inc., 707
So. 2d 886, 887 (Fla. 1st DCA 1998) (trial court could not consider unauthenticated document in
ruling on motion for summary judgment).

6 Rule 1.510(e) requires that "[s]worn or certified copies of all papers . . . referred to in an
affidavit shall be attached thereto or served therewith." See also First North American National
Bank v. Hummel, 825 So. 2d 502, 504 (Fla. 2d DCA 2002) (party opposing motion for summary
judgment could not rely on documents that were not authenticated or supported by an affidavit or
other evidentiary proof); Tunnel v. Hicks, 574 So. 2d 264, 266 (Fla. 1st DCA 1991) (same).

The transcripts, no doubt, could be certified but they are not.

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Edward's heavy burden of proof and this Court cannot rely on them to justify a grant of summary

judgment. Id.

8. Moreover, the Supporting Papers constitute inadmissible hearsay and the statements

within them cannot be considered for the truth. None (except Exhibit "N") has been authenticated

by anyone in an attempt to lay the required foundation for their admissibility as either public records

or business records. See Biluko, 693 So. 2d at 710-711 (insurance documents attached to motion

for summary judgment were inadmissible under business records or public records exceptions to

hearsay rule where required predicate was not established); Gray v. State, 910 So. 2d 867, 869 (Fla.

1st DCA 2005) (document on Department of Corrections letterhead was hearsay where foundation

not laid for its admission as a business record or a public record); see also Adams v. State, 521 So.

2d 337, 338 (Fla. 4th DCA 1988) (business records are inadmissible without a proper foundation for

their admission).

9. The Supporting Papers therefore constitute unauthorized and improper

unauthenticated documentary evidence which must be stricken from defendant Edwards's Statement

of Undisputed Facts that allegedly support his Motion for Summary Judgment and which cannot

properly be considered by this Court in support of the Summary Motion.

WHEREFORE, based on the foregoing, PlaintiffJeffrey Epstein respectfully requests that

this Court enter an Order striking Exhibits "A" through "M" and "O" through "UU," as well as

Attachments numbered "1" through "22," allegedly offered in support of Defendant Bradley J.

Edwards's Statement of Undisputed Facts submitted with his Motion for Summary Judgment as to

all claims against him, and grant such other and further relief to Plaintiff as the Court deems

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appropriate.

Respectfully submitted,


Joseph L. Ackerman, Jr.
Florida Bar # 235954
Christopher E. Knight
Florida Bar #607363

FOWLER WHITE BURNETT, P.A.
Attorneysfor Plaintiff Jeff Epstein
Phillips Point, West Tower
777 South Flagler Dr., Suite 901
W. Palm Beach, FL 33401




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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing Plaintiff's Motion to Strike Exhibits to

Defendant Edwards's Motion for Summary Judgment was served by this day of

November, 2010 on:

Jack Scarola
Searcy Denney Scarola Barnhart & Shipley
Attorneysfor Bradley J. Edwards
2139 Palm Beach Lakes Boulevard
West Palm Beach, FL 33409

Marc S. Nurik,
Law Offices of Marc S. Nurik
Attorneysfor Scott Rothstein
One E. Broward Blvd., Ste 700
Fort Lauderdale, FL 33301




(as] WN307.131motion to strike etlw aj •upmn.sua 1 1/21/10.22291




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