EFTA01194855.pdf

1 1 IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA 2 CASE NO. CACE 15-000072 3 4 BRADLEY J. EDWARDS and PAUL G. CASSELL, 5 Plaintiffs, 6 vs. 7 8 9 Defendant. 10 13 HEARING BEFORE THE HONORABLE THOMAS M. LYNCH, IV 14 15 FRIDAY, JUNE 5, 2015 16 BROWARD COUNTY COURTHOUSE, COURTROOM 950 FORT LAUDERDALE, FLORIDA 17 10:00 III. - 10:36 III. 18 19 20 Re.orted B : 21 Notary Public, State of Florida 22 Esquire Deposition Services Fort Lauderdale Office 23 24 25 EFTA01194855  2 1 APPEARANCES: 2 On behalf of the Plaintiffs: 3 JACK SCAROLA, ESQUIRE 4 SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 2139 PALM BEACH LAKES BOULEVARD 5 WEST PALM BEACH, FLORIDA 33409-6601 6 On behalf of the Defendant: 7 THOMAS E. SCOTT, ESQUIRE STEVEN R. SAFRA, ESQUIRE VIA TELEPHONE) 8 COLE, SCOTT & KISSANE, DADELAND CENTER II, 14T LOOR 9 9150 SOUTH DADELAND BOULEVARD MIAMI, FLORIDA 33156 10 Co-counsel on behalf of the Defendant: 11 RICHARD A. SIMPSON, ESQUIRE 12 WILEY REIN, LLP 1776 K STREET NW 13 WASHINGTON, DC 20006 14 ALSO PRESENT: 15 SIGRID MCCAWLEY, ESQUIRE 16 BOIES SCHILLER & FLEXNER, LLP 401 EAST LAS OLAS BOULEVARD 17 SUITE 1200 FORT LAUDERDALE, FLORIDA 33301-2211 18 19 20 21 22 23 24 25 EFTA01194856  3 1 (Thereupon, the following proceedings were 2 had): 3 THE COURT: Good morning. I'm not sure who is 4 on the phone. Could you identify yourself, please. 5 MR. SAFRA: This is Steven Safra. I won't be 6 making argument. I'm available if Mr. Scott or 7 Simpson needs. 8 THE COURT: Okay. I just wanted to let you 9 know as well that our equipment is not the 10 greatest, and if you can't hear someone that means 11 that they're too far away from the phone, which is 12 not very far at all , and so we'll do the best we 13 can. 14 MR. SAFRA: I appreciate that. 15 THE COURT: And let us know if you have some 16 difficulties. 17 Good morning, everyone. 18 MR. SCAROLA: Good morning, your Honor. 19 MR. SCOTT: Good morning, Judge. 20 THE COURT: A couple of things before we 21 begin. I was getting some information from my 22 assistant yesterday as to some changes in what we 23 are going to go forward on and what we're not. I 24 think the last I heard was that we're not going 25 forward on the motion to dismiss the counterclaim; EFTA01194857  4 1 is that correct? 2 MR. SIMPSON: Correct, your Honor. 3 THE COURT: I was actually thinking of you 4 gentlemen when I read the cases out of the Fourth 5 on Wednesday morning. There was a case that might 6 be relevant here, defamation and the privilege 7 issue on judicial proceedings, Zuccarelli versus 8 Barfield, and anyway so -- 9 MR. SIMPSON: Thank you, Judge. 10 THE COURT: -- we won't have to deal with that 11 now, but that's the latest case. It can't get much 12 later than Wednesday, but what else are we not 13 going forward on? 14 MR. SCAROLA: Your Honor, the only matter 15 that's before the Court this morning has to do with 16 our efforts to obtain document production. 17 THE COURT: Okay. 18 MR. SCAROLA: Jack Scarola on behalf of the 19 plaintiffs, Paul Cassell and Brad Edwards, your 20 Honor, and that is the sole issue that your Honor 21 will be addressing this morning. Other issues have 22 been postponed to a later time. 23 THE COURT: Okay. 24 MR. SCOTT: Judge, Tom Scott on behalf of the 25 defendant, . With me, Judge, let me EFTA01194858  5 1 introduce Mr. Rick Simpson. He's my co-counsel and 2 he'll be doing some of the argument this morning. 3 THE COURT: Good morning, how are you? 4 MR. SIMPSON: Thank you, Judge. 5 MR. SCOTT: Judge, to answer your question, 6 the issues involving Jane Doe 3, the motion to 7 quash, they've been taken off, so what we're here 8 this morning on is the Court's request to entertain 9 more argument on the six incidents and some 10 discovery motions, all of it between Mr. 11 and the Cassell people, so that's where we're at. 12 THE COURT: Okay, great. Well , thank you very 13 much. 14 MR. SCAROLA: Your Honor, let me also just 15 take a moment and introduce Sigrid McCawley. Ms. 16 McCawley is -- 17 THE COURT: Good morning. 18 MS. MCCAWLEY: Good morning. 19 MR. SCAROLA: -- representing Jane Doe Number 20 3. That matter is not before the Court this 21 morning, but she's here to observe today's 22 proceeding. 23 THE COURT: Good morning, welcome. 24 MS. MCCAWLEY: Good morning. 25 THE COURT: Okay. I'm ready if you are. EFTA01194859  6 1 MR. SCAROLA: Thank you very much, your Honor. 2 MR. SCOTT: Are you going to go first? 3 MR. SCAROLA: I would like to. 4 MR. SCOTT: Okay. 5 MR. SIMPSON: No objection. 6 MR. SCOTT: Absolutely, no objection. 7 MR. SCAROLA: Thank you. 8 MR. SCOTT: Whatever you want, Jack. 9 MR. SCAROLA: Thank you. I appreciate that. 10 Your Honor, we served a first request for 11 production on January 9, 2015, and that production 12 request was responded to on February 23rd. The 13 response says repeatedly that specific documents 14 will be produced. 15 Your Honor may recall from earlier argument 16 presented with regard to these matters that that 17 production request focussed on an affidavit that 18 had been filed by Mr. in which 19 Mr. makes specific reference to 20 documents that he had in his possession that 21 demonstrated his, quote, innocence, unquote, of the 22 allegations that had been made against him included 23 in a filing in federal court, so what we were 24 looking to obtain was what Mr. said not 25 only in the affidavit but in repeated public EFTA01194860  7 1 statements that he was able to obtain within a 2 matter of an hour after learning of the charges 3 against him. 4 So when we got a response that said, we will 5 produce, I immediately wrote a letter to Mr. Scott 6 and my letter points out a we will produce response 7 without production, does not comport with the 8 rules, when are we going to get the documents or 9 when are we going to get access to the documents? 10 That letter was not responded to. 11 We filed a third request for production on 12 March 2, 2015, and that request for production asks 13 for communications with public news sources and 14 media representatives as well as communications 15 with federal prosecutors and any communication with 16 opposing counsel relating to the non -prosecution 17 agreement in the Crime Victims' Rights Act case 18 and, again, we got a we will produce response. We 19 also got a burdensomeness objection and there were 20 burdensomeness objections included in the response 21 to the earlier request as well without any 22 supporting affidavit with regard to the nature of 23 the burden that would preclude production and we 24 got privilege objections without any indication as 25 to the basis or the privilege, no privilege log EFTA01194861  8 1 produced with regard to either the first or the 2 third request to produce. 3 The second request to produce says, although 4 there's a lot of other verbiage about objections 5 and all sorts of other excuses for not responding, 6 the bottom line in that request was we have no 7 documents, so I assume that they have no documents 8 with regard to the second request, and our focus is 9 on the first and third. 10 Your Honor may recall that there was some 11 discussion at an earlier hearing about the fact 12 that although Mr. claimed to have the 13 documents in his possession already that, in fact, 14 the documents resided somehow with Harvard 15 University and that it was necessary for him to 16 make arrangements to get his documents from Harvard 17 in order to comply with our production request. 18 Our fourth request to produce, a response to 19 which is due either today or within the next few 20 days, asks for all the communications with Harvard 21 about obtaining production of these documents 22 because what we have subsequently learned is that 23 there was an agreement that was entered into 24 between Mr. and Harvard on May 12th, 25 that's four months after the request to produce was EFTA01194862  9 1 initially filed, and I think it will be significant 2 ultimately to determine when these efforts to 3 obtain the documents allegedly in the possession of 4 Harvard contrary to Mr. assertions 5 that he had possession of the documents when the 6 efforts to obtain these documents actually began. 7 At this point we don't know that. 8 On March -- excuse me, on May 14th, that's two 9 days after the agreement was entered into, we are 10 sent a copy of the agreement by email and we are 11 asked to consent to the agreement between Harvard 12 and Mr. and three and a half -- excuse 13 me, less than two hours later the agreement arrives 14 at 5:57 III. Less than two hours later at 15 8:55 III. , I send back the following email to all 16 of those who were copied on the email to me, quote, 17 we agree that implementation of the attached 18 agreement will not itself constitute a waiver of 19 any privilege, which is what we were asked to agree 20 to, do you agree that this isn't going to be a 21 privilege waiver? We tell them we agree. 22 12 days later they send a consent motion and 23 ask for comments. My response to that was, I have 24 already told you I don't have any objection. We 25 agree that implementation of the attached agreement EFTA01194863  10 1 will not itself constitute a waiver of any 2 privilege. The next day they ask again and three 3 and a half hours after they ask again we repeat, we 4 don't have an objection. 5 Now, they then file two separate pleadings, 6 one is a motion for order of non -waiver of 7 privilege, and in this motion for non -waiver of 8 privilege, they state on May 12, 2015, Harvard and 9 the defendant entered into a letter agreement. 10 Until defendant obtained in a form satisfactory to 11 him an agreement by plaintiffs that implementation 12 of the agreement will not result in a waiver or 13 forfeiture of any privilege, they can't get the 14 documents. 15 Now, I don't know how much clearer I could 16 have been than I was in the email exchange that 17 preceded the filing of this document, but attached 18 to this is a certificate of conferral that says 19 counsel certifies that he has made a good faith 20 attempt to resolve this matter with opposing 21 counsel prior to filing this motion to no avail . 22 Then they file a notice of adoption. The 23 notice of adoption says, defendant requested that 24 plaintiffs agree to the order that they want the 25 Court to enter. Plaintiffs have refused the EFTA01194864  11 1 agreement. They attach to this motion the exchange 2 of emails in which I have repeatedly agreed. The 3 only conclusion that I can draw from this 4 extraordinary set of circumstances is that every 5 effort is being made to avoid complying with the 6 discovery obligations that Mr. has in 7 this case. 8 First he says he has documents, then he says 9 he doesn't have documents. First he says he will 10 produce, then he refuses to say when he will 11 produce, and the bottom line here is that it has 12 now been five months since the production requests 13 were filed and we still don't have any substantive 14 response. 15 Now, let me qualify that by acknowledging as I 16 did at the earlier hearing that we were sent some 17 documents. The documents we were sent were copies 18 of publicly filed pleadings in the CVRA case and 19 copies of news reports, newspaper articles about 20 Mr. allegations against Bradley 21 Edwards and Paul Cassell in which he accuses them 22 of having been intentional co-conspirators with 23 Jane Doe Number 3 to make false charges against 24 him, that is that documents were filed knowing they 25 were false and that they knew they were false EFTA01194865  12 1 because they had assisted in fabricating the false 2 allegations. So except for the newspaper articles 3 and publicly filed pleadings, all of the other 4 documents that allegedly demonstrate Mr. 5 innocence have never been produced. 6 It's hard to believe that they were all in the 7 custody of Harvard, but even if they were all in 8 the custody of Harvard it is impossible to believe 9 that diligent efforts have been made to obtain 10 them, Mr. own documents, out of the 11 custody of Harvard. 12 It's extremely frustrating that I have to 13 bring these matters to the attention of the Court 14 because I know Mr. Scott and I know that this is 15 not the work of Tom Scott. This is not a good 16 faith effort to comply with discovery obligations. 17 This is somebody's clearly abusive tactics to avoid 18 providing discovery. 19 I would ask the Court to very clearly and 20 unequivocally put an end to those efforts, and I 21 thank you for your time, your Honor. I took more 22 time than I should have on a matter such as this, 23 but I think it's important for the Court to 24 understand the full context of the background. 25 I've got copies of all of those documents that I EFTA01194866  13 1 referred to, if your Honor needs any of them. 2 THE COURT: No. I've got everything. 3 MR. SCAROLA: Thank you. I thought you had, 4 sir. 5 THE COURT: And if I don't it's on-line. 6 MR. SCAROLA: Thank you very much. 7 THE COURT: Sure. 8 If you can just hold on for one second. 9 MR. SIMPSON: Certainly. 10 THE COURT: Okay. Thank you. 11 MR. SIMPSON: Good morning, your Honor. 12 THE COURT: Good morning. 13 MR. SIMPSON: It's frustrating for us that 14 this dispute hasn't been resolved also. The 15 fundamental issue is very simple and 16 straightforward, it's the one that was argued 17 preliminarily with your Honor at the prior hearing 18 and that hearing was continued to today for further 19 argument, and that is what is the appropriate scope 20 of discovery? To know what is responsive, to know 21 if anything is privileged, you have to know what is 22 the scope of discovery. 23 What is this case about? It's about 24 allegations that these plaintiffs, these lawyers, 25 put in the public record in the federal court EFTA01194867  14 1 saying that Professor had sex with Jane 2 Doe 3 six times when she was underage. They also 3 filed an affidavit from Jane Doe 3 saying the same 4 thing. Professor responded as would 5 anyone falsely accused with outrage and he was sued 6 for defamation. 7 What we have asked and what fundamental 8 fairness requires is tell us when and where these 9 six instances you allege took place. Now, first of 10 all , Judge Marra in the federal court has stricken 11 those allegations and stricken the affidavit 12 because they were in bad faith and never should 13 have been made. They never should have been put in 14 the public record, they were false, but beyond 15 that, as the judge noted, they were completely 16 irrelevant to that case. But these lawyers, they 17 say they did a careful investigation before they 18 made the allegations. They have to have talked to 19 Jane Doe, they have to know when the six events 20 took place, if they did an investigation, and all 21 we're saying is and what the rules require in terms 22 of the scope of discovery is what's relevant are 23 those six instances. She identifies places with no 24 timeframe where she alleges these events took 25 place. She mentions Mr. Epstein's ranch, she EFTA01194868  15 1 mentions his island, she's mentions New York, she 2 mentions Palm Beach. We have discovery requests 3 that in effect ask professor , tell us 4 every time you've been to any of these places in 5 15 years. Well , all of that is irrelevant unless 6 it's in the timeframe when she says the events took 7 place, and these lawyers, if they did their 8 investigation, have to know when that was and so 9 really it's a simple request, it's one that due 10 process and fundamental fairness requires, and 11 that's specify, give the bill of particulars, when 12 did these take place, and then we will produce the 13 documents that relate to when Professor 14 was or was not at those places. You can't change 15 documents. But if we go first, first of all , it's 16 almost impossible because the requests go to every 17 time you were any of these places over a long 18 period of time, it's immensely burdensome, it 19 intrudes on personal matters unnecessarily. 20 If you say at the ranch in approximately 21 December of 2001 is when this took place, then you 22 have a relevant scope, or if they say, we have no 23 idea, we did our careful investigation but we don't 24 know when our client contends this took place, 25 well , that tells us something too, then you're EFTA01194869  16 1 looking at the timeframe that she was with Epstein, 2 but it's in the context of, and they don't have 3 anymore specifics than that. 4 If Professor first produces 5 information about when he was in location, say he 6 produces information about when he was on Epstein's 7 island, it's very easy for the other side then to 8 tailor, oh, yeah, that's when it took place, to 9 tailor their testimony. You don't have to assume 10 that someone is going to be untruthful to recognize 11 that concern. Professor can't change 12 his documents, the travel records show what they 13 show, the bills show what they show, he can't 14 change that, and so the most important issue before 15 the Court is what is the scope of discovery and are 16 these plaintiffs who made the allegations about six 17 instances required to say when those six instances 18 were as best they know, when and where, to define 19 the scope of discovery. The only other discovery 20 that's relevant are the statements that both sides 21 made to the press within the last -- December 2014, 22 January 2015, so that's both defining the scope of 23 discovery and is a matter a fundamental fairness. 24 I also want to take issue -- must take issue 25 with how the discovery process in this case has EFTA01194870  17 1 gone forward because it has been one-sided but 2 one-sided in the opposite direction of what 3 Mr. Scarola has suggested. We have done an 4 enormous amount of work to attempt to get documents 5 and to get documents. At the last hearing Mr. 6 Scott noted that Professor was going to 7 his place in Massachusetts to get boxes and boxes 8 of documents. He got those boxes and boxes of 9 documents, he got them to his attorneys, they're 10 being reviewed. 11 We hired an e-discovery vendor who got access 12 to Professor Gmail and pulled 13 relevant -- a great time and expense -- and pulled 14 relevant emails so that they can be reviewed. We 15 have negotiated this agreement with Harvard, and 16 the documents aren't all at Harvard, it's a wide 17 universe. It was a lot of effort and expense to 18 get Harvard University to agree to make documents 19 available, and I would note the plaintiffs have not 20 produced anything in this case. We have discovery 21 requests out, we have a motion to compel out, we 22 haven't gotten a single piece of paper. Has 23 Mr. Cassell obtained documents from the server at 24 the University of Utah? Has he obtained an 25 agreement from the University of Utah to have EFTA01194871  18 1 access to documents? It's been entirely a one-way 2 street. We've done an enormous amount of work 3 gathering documents. We are continuing to do that 4 work and once the Court defines the appropriate 5 scope of discovery, which is these six instances 6 which they have to know, they have to be able to 7 say when those are or admit that they filed these 8 pleadings without knowing, that and the more recent 9 statements are the scope of discovery and we'll 10 produce documents and we'll begin producing 11 documents on a rolling basis as promptly as 12 possible. 13 As to Harvard, I do have to correct. We were 14 completely puzzled as to why Mr. Scarola would not 15 consent to the order that we were submitting, this 16 order that would not be a waiver to implement the 17 agreement with Harvard, that's why we asked twice. 18 It appears that the point there was more to attempt 19 to create an impression that we somehow were not 20 working diligently rather than to resolve 21 something. Apparently it's agreed that there's no 22 objection to the order that we submitted, it would 23 confirm that our agreement with Harvard does not by 24 itself constitute a waiver of attorney -client 25 privilege and your Honor will understand the EFTA01194872  19 1 concern here is the background. We said to 2 Harvard, we need to get access to Professor 3 email . We've hired this e-vendor, can 4 the e-vendor make a copy of all of the relevant 5 electronic records and review them? And Harvard 6 said no. And we said why not? And they, of 7 course, said, well , we have our own concerns, we 8 have federal and state limitations on things like 9 student records and social security numbers and all 10 kinds of -- 11 THE COURT: Well , I don't think there's 12 concern as it relates to those issues. 13 MR. SIMPSON: No, your Honor, and if there's 14 no objection to the consent order, Harvard is ready 15 and our e-vendor is ready to start right away. We 16 need the consent order issued. I just wanted to 17 make clear the reason that we and Mr. Scott's 18 office believed that there was not consent to this 19 order is we asked, do you consent to the order? 20 And we got a carefully rephrased response that 21 didn't say we consent to the order, it said 22 something different, so we couldn't represent to 23 the Court he said yes to the order, that's all 24 that's going on there, we'll work it out in the 25 hallway. If the Court enters the order we'll start EFTA01194873  20 1 with the e-vendor and Harvard discovery right away 2 but, again, the Harvard documents are not -- 3 there's a lot more to it. There's hard copies, 4 there's Gmail , there's all kinds of other sources, 5 that's the scope. 6 I mean, if you look at these discovery 7 requests, just to give an example of how broad they 8 are -- I already gave the example -- they're asking 9 basically for Professor to provide his 10 information on when he was at various locations 11 including Palm Beach and New York and New Mexico 12 over more than a decade with no specification as to 13 when. They have requests asking him to produce all 14 documents he has relating to Jeffrey Epstein's 15 criminal case. Well , first of all , Jeffrey Epstein 16 was the client, it is his privilege, and it's got 17 nothing at all to do with what this case is about 18 because according to Jane Doe 3's own affidavit, 19 her experience, her status with Epstein as a sex 20 slave ended in 2002 when she escaped to Thailand. 21 These Epstein documents in the criminal case are 22 2007 or later. They have nothing to do with 23 anything. 24 So really, your Honor, what we're asking you 25 to do today -- we think it's straightforward -- is EFTA01194874  21 1 first as matter of proper discovery rules and as a 2 matter of due process to specify the scope of 3 discovery is the six instances that have been 4 alleged requiring the plaintiffs to identify as 5 best they are able when and where those six 6 incidents took place, make clear that these 7 documents having to do with Epstein in the criminal 8 case, that's a fishing expedition looking for 9 materials for their federal action attempting to 10 undue this non -prosecution agreement, have nothing 11 to do with this case. We're looking for approval 12 of the Harvard agreement, which appears to be 13 uncontested, and we're asking -- 14 THE COURT: Can I interrupt you for a second? 15 MR. SIMPSON: Sure. 16 THE COURT: What's your position, sir, on the 17 agreement, any other thoughts on that, Mr. Scarola? 18 MR. SCAROLA: Your Honor, I don't know how I 19 could have said it any more clearly. They asked 20 whether the agreement would constitute a waiver. I 21 wrote back, the agreement does not constitute a 22 waiver, it's a one-sentence response telling them 23 exactly what they asked twice, so if there was some 24 ambiguity about that I would think somebody would 25 have picked up the telephone and said, does this EFTA01194875  22 1 mean we can submit the agreed order? And I would 2 have said, yes, it means you can submit the agreed 3 order. 4 THE COURT: Okay. 5 MR. SCAROLA: Instead they say I failed to 6 respond. I mean, I just don't understand that. 7 THE COURT: That's fine. Thank you. 8 MR. SIMPSON: Our question was is there 9 consent to the order? If the answer is yes then 10 that's not an issue. 11 THE COURT: There we go. 12 MR. SIMPSON: That part is resolved. 13 THE COURT: The first step. 14 MR. SIMPSON: We're making progress. 15 MR. SCOTT: There's progress. 16 MR. SIMPSON: And the other thing we would 17 ask, your Honor, as I said, the key is to limit 18 discovery to these six instances, it's a matter of 19 fairness, it's just fundamental to every aspect of 20 whether you're looking at burdensomeness, whether 21 you're looking at fairness in terms of procedure, 22 whether you're looking at assuring that there is 23 not a change in recollection after the fact, that's 24 a matter of fairness. The other thing, your Honor, 25 is to make clear that discovery is both ways. We EFTA01194876  23 1 made extensive discovery requests ourselves, 2 appropriate discovery requests. We got written 3 responses but were told, we won't produce any 4 documents until you produce documents. That's not 5 a valid objection to say until you give me 6 everything of yours I'll give you nothing of mine. 7 THE COURT: Yeah, but that's not really on the 8 table today, is it? 9 MR. SIMPSON: Well , by implication, I suppose, 10 your Honor, it can be addressed separately, but it 11 does put it in the context because the complaint is 12 delay in discovery and the party complaining about 13 delay in discovery has not produced anything based 14 on an objection that on its face is meritless. 15 Unless your Honor has any questions I think 16 that covers our main points. 17 THE COURT: I don't have any questions, but I 18 did want to let everyone know that I'm at an 19 educational conference next week, so that's going 20 to delay this a little longer than I had hoped, but 21 I certainly will get word to you as soon as I can 22 because there's quite a bit here. And Mr. Scarola 23 looks like he wants to have a reply, so go right 24 ahead. 25 MR. SCAROLA: Thank you very much, your Honor. EFTA01194877  24 1 THE COURT: Thank you, sir. 2 MR. SCAROLA: Your Honor, in essence, what we 3 have heard is, the reason why we don't want to 4 comply with our discovery obligation is because it 5 will give Jane Doe Number 3 an opportunity to 6 tailor her testimony to conform with what we are 7 able to prove. What we are hearing, once again, is 8 that Bradley Edwards, Paul Cassell and I assume 9 Searcy, Denney, Scarola, Barnhart and Shipley and 10 Jack Scarola in particular are going to suborn 11 perjury again. They are going to provide this 12 information to Jane Doe Number 3 and that's going 13 to give Jane Doe Number 3 an opportunity to perjure 14 herself once more. If that really is a concern, 15 and I am offended that that is the principal 16 argument that is being made, but if that really is 17 a concern, I have absolutely no objection 18 whatsoever to the entry of a protective order that 19 prohibits any communication of the information that 20 we obtained from to Jane Doe Number 21 3. 22 THE COURT: Listen, it's not a concern of 23 mine. 24 MR. SCAROLA: Thank you. I appreciate that, 25 your Honor, and I assure the Court that -- as I EFTA01194878  25 1 said, I'm offended that that kind of argument was 2 made, it is not an excuse for failing to provide 3 the discovery. There has been a detailed affidavit 4 filed by Jane Doe Number 3. She has identified 5 specific locations where the sexual contact between 6 her and occurred. She has 7 identified the timeframe during which it occurred, 8 the years 1999 through 2002, the period of time 9 when she was being kept as what has been referred 10 to as a sex slave of Mr. Epstein's and the requests 11 for production are specifically related to precise 12 statements that are made in Mr. 13 affidavit. He filed a detailed affidavit. We've 14 asked him with reference to the affidavit itself, 15 what are the documents that you are referring to in 16 the affidavit that you filed? Now, it would seem 17 to me that that's a very specific, very tailored 18 narrow request, and there is no basis for failing 19 to respond to that request. 20 With regard to the argument that has been made 21 regarding our request for documents relating to 22 communications between Mr. and federal 23 prosecuting authorities, your Honor may recall that 24 there is an extraordinary provision in the 25 non -prosecution agreement that was entered into EFTA01194879  26 1 between the Federal Government and Mr. Epstein 2 which is being challenged in the Crime Victims' 3 Rights Act case. That extraordinary provision not 4 only immunizes Mr. Epstein from federal 5 prosecution, it immunizes all of his 6 co-conspirators, anyone who participated in the 7 wrongdoing that was the subject of Mr. Epstein's 8 state criminal prosecution and federal criminal 9 investigation. 10 Clearly, to the extent that Mr. was 11 involved directly in negotiating a provision in the 12 non -prosecution agreement to protect himself from 13 criminal prosecution, that is highly relevant and 14 material to the underlying issues in this lawsuit. 15 It is evidence of his motive to conceal his own 16 wrongdoing. 17 So the argument that is being made that this 18 is not evidence reasonably calculated to lead to 19 the discovery of admissible evidence, to the extent 20 that that's the argument that is being relied upon 21 here, that argument simply is not well taken. This 22 is evidence reasonably calculated to lead to the 23 discovery of admissible evidence, and on that 24 basis, your Honor, I thank you for your time and 25 look forward to the receipt of your order whenever EFTA01194880  27 1 you're ready to get to it. 2 THE COURT: Okay. Thanks. 3 MR. SIMPSON: May I make just two quick 4 points, your Honor? 5 THE COURT: Sure, of course. 6 MR. SIMPSON: The first is our principal 7 argument on these six incidences had nothing to 8 do -- didn't even have to do with Jane Doe's 9 testimony. There is just as a matter of fact that 10 possibility of altered testimony. The point is the 11 incidents define the scope of relevance. Those are 12 the allegations. 13 THE COURT: Oh, I understand. Your position 14 is that it should be restricted to those six areas 15 and I understand that. 16 MR. SIMPSON: And, your Honor 17 THE COURT: And I didn't think you were 18 accusing -- 19 MR. SIMPSON: I wanted to make sure -- yeah, 20 no, no, I just wanted to make sure your Honor 21 understood that because it was stated as our 22 primary -- we're not accusing anyone of anything. 23 THE COURT: I understand. 24 MR. SIMPSON: And I would note, Mr. Scarola 25 referred to the affidavit that Jane Doe filed in EFTA01194881  28 1 the federal case and put the timeframe and places, 2 it said 1999 to 2002, that's all it said, and they 3 don't even go to Jane Doe. They did the 4 investigation. Is that really all they knew 5 because that's all it says, it doesn't say within 6 my first year, within the first month, it doesn't 7 give any more timeframe than I was with Epstein for 8 four years and some unspecified time in that four 9 years. All we're asking for is the lawyers, not 10 Jane Doe, the lawyers who made these allegations to 11 say when they were, and then once they've said when 12 they were, Professor in fairness can be 13 asked to produce his documents about when he was 14 there. 15 The second point I wanted to make, your Honor, 16 was about this Epstein and the non -prosecution 17 agreement. No one could reasonably read that 18 non -prosecution agreement as protecting Professor 19 , but we don't need to debate it back and 20 forth. The judge in the federal case has already 21 said the allegations they're referring to were 22 irrelevant, impertinent and scandalous. He even 23 removed them from the public record. So he doesn't 24 think they were relevant at all to his case. Thank 25 you, your Honor. EFTA01194882  29 1 THE COURT: Okay. Thank you. 2 MR. SIMPSON: Have a good day, Judge. 3 THE COURT: As I indicated I'm going to 4 reserve. 5 (Thereupon, the proceedings were concluded at 6 10:36 III.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EFTA01194883  30 1 CERTI FICATE 2 3 4 I, , State of 5 Florida, certify that I was authorized to and did 6 stenographically report the foregoing proceedings, pages 7 1 to and including 29, before THE HONORABLE THOMAS M. 8 LYNCH, IV, and that the transcript is a true and 9 complete record of my stenographic notes. 10 I further certify that I am not an 11 attorney or counsel of any of the parties, nor am I a 12 relative or employee of any attorney or counsel or party 13 connected with the action, nor am I financially 14 interested in the action. 15 Dated this 15th day of June, 2015. 16 17 18 19 20 21 22 23 24 25 EFTA01194884