EFTA00803632.pdf
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UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE
Case No. 09-34791-RBR
Chapter 11
IN RE:
ROTHSTEIN ROSENFELDT ADLER, P.A.,
Debtor
VIDEOTAPED DEPOSITION
OF
JAMES N. HURLEY, ESQUIRE
Corporate Representative of Fowler White Burnett, PA
Friday, October 19th, 2018
10:05 a.m. - 2:29 p.m.
525 Okeechobee Boulevard, Suite 1200
West Palm Beach, FL 33401
Examination of the witness taken before
Sonja D. Hall
Palm Beach Reporting Service, Inc.
1665 Palm Beach Lakes Boulevard, Suite 1001
West Palm Beach, FL 33401
(561) 471-2995
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1 APPEARANCES:
2 For Jeffrey Epstein:
3 LINK & ROCKENBACH, P.A.
1555 Palm Beach Lakes Boulevard, Suite 301
4 West Palm Beach, FL 33401
By SCOTT J. LINK, ESQUIRE
5 By JENNIFER LETTMAN, ESQUIRE
6
For Bradley Edwards:
7
SEARCY, DENNEY, SCAROLA, BARNHART &
8 SHIPLEY, P.A.
2139 Palm Beach Lakes Boulevard
9 West Palm Beach, FL 33409
By JACK SCAROLA, ESQUIRE
10
For Farmer Jaffe:
11
EDWARDS POTTINGER LLC
12 425 N Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301
13 By Bradley Edwards, Esquire
14 For Fowler White:
15 CARLTON FIELDS, PA
525 Okeechobee Boulevard, Suite 1200
16 West Palm Beach, FL 33401
By JOSEPH IANNO, JR, ESQUIRE
17
18 ALSO PRESENT
19 Above & Beyond Reprographics
2161 Palm Beach Lakes Boulevard, Suite 412
20 West Palm Beach, FL 33409
By Manuel Santiago, Videographer
21
22
23
24
25
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1 INDEX
2
3 Videotaped Deposition of JAMES N. HURLEY, ESQUIRE Page No.
4
5 Direct Examination by Mr. Scarola 6
6 Cross-Examination by Mr. Edwards 71
7 Cross-Examination by Mr. Link 105
8 Redirect Examination by Mr. Scarola 106
9 Recross-Examination by Mr. Link 126
10 Further Redirect Examination by Mr. Scarola 127
11 Recross-Examination by Mr. Edwards 150
12 Certificate of Oath 153
13 Certificate of Reporter 154
14 Read & Sign Letter to Witness 155
15
16 EXHIBIT INDEX
17
18 Letter Description Page No
19 A Re-Notice of Taking Video Deposition 7
20 B Exhibit Numbered Documents 44
21 C Produced Subpoena Duces Tecum Documents 109
22 D Various Bates-Stamped Documents 143
23 (Sealed and retained by Mr. Scarola)
24
25
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1 THE VIDEOGRAPHER: We are on the video
2 record. This is the 19th day of
3 October 2018. The time is approximately
4 10:05 a.m.
5 This is the videotaped deposition of
6 the corporate representative of Fowler White
7 Burnett, P.A., In Re: Rothstein Rosenfeldt
8 Adler, PA.
9 This deposition is being held at 525
10 Okeechobee Boulevard, West Palm Beach, FL
11 33401.
12 My name is Manuel Santiago. I am the
13 videographer representing Above & Beyond
14 Reprographics.
15 Will the attorneys please announce
16 their appearances for the record?
17 MR. SCAROLA: My name is Jack Scarola.
18 I am counsel on behalf of Bradley Edwards.
19 MR. EDWARDS: Brad Edwards on behalf of
20 Farmer Jaffe.
21 MR. IANNO: Joseph Ianno, Carlton
22 Fields, on behalf of Fowler White.
23 MR. LINK: Scott Link and let Jennifer
24 Lettman on behalf of Mr. Epstein.
25
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1 THEREUPON,
2 JAMES N. HURLEY, ESQUIRE,
3 being a witness in the notice heretofore
4 filed, and being first duly sworn in the above cause,
5 testified on his oath as follows:
6 THE WITNESS: I do.
7 MR. LINK: Mr. Scarola, before we begin
8 with questions, some housekeeping matters.
9 You have a subpoena -- the notice, at
10 least, with duces tecum.
11 MR. SCAROLA: Yes.
12 MR. LINK: So we have 182 pages of
13 documents to be produced. So I'm giving you
14 what we've marked as 1 through 182.
15 We have an additional set of documents
16 that are 183 through 215, that I do not
17 believe are responsive to your notice. They
18 are Bates-numbered emails. I don't know if
19 you want to have these produced and made
20 available to everyone or not.
21 MR. SCAROLA: Are those the documents
22 that have been identified on a privilege
23 log?
24 THE WITNESS: They very well may be.
25 They have Bates numbers on them. I do not
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1 know if they were originally identified on a
2 privilege log, subsequently removed. I
3 don't know the status of them, but they may
4 very well have been originally on a
5 privilege log.
6 MR. SCAROLA: Let me see what you have.
7 We will talk about both of the groups of
8 documents you're producing today and we will
9 decide what, if anything --
10 MR. IANNO: One group I'm producing.
11 The second group I don't believe is
12 responsive, but I will produce it, if you
13 would like a copy of them.
14 MR. LINK: You have a copy for me of
15 the second group?
16 MR. IANNO: No, because I am not
17 producing them yet.
18 MR. LINK: You delivered them.
19 MR. IANNO: No, no. I didn't deliver
20 them. He's looking at them. I only have
21 one copy. My copy.
22 DIRECT EXAMINATION
23 BY MR. SCAROLA:
24 Q Would you please state your full name?
25 A John Norford Hurley.
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1 Q Mr. Hurley, how are you currently employed?
2 A I'm employed by Fowler White Burnett.
3 Q Are you appearing here today on behalf what
4 we will call Fowler White, for abbreviated purposes, in
5 response to a re-notice of taking video deposition of
6 the law firm?
7 A I am.
8 Q I am going to hand you a copy of that notice,
9 and ask you whether you have seen what has now been
10 marked as Exhibit A to this deposition previously.
11 A I have seen the notice of the deposition.
12 (Exhibit A was marked for identification.)
13 BY MR. SCAROLA:
14 Q Can you tell us, please, what role, if any,
15 you played in gathering documents that have been
16 produced in response to this notice of deposition duces
17 tecum?
18 A Together with our counsel, we reviewed
19 documents from our file to determine what was
20 responsive and what wasn't responsive.
21 Q I have been handed a package of documents,
22 which I have not yet had an opportunity to review. Can
23 you tell me, please, the procedure that was used to
24 gather those documents? Where did they come from?
25 A Those are documents which were maintained in
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1 the Fowler White file. We have gathered them since
2 2017 to get all of our file materials together. We
3 have provided our file materials to our counsel.
4 I also reviewed emails from my Outlook box
5 subsequent to delivery of the files to counsel for
6 communications between myself and the Link &
7 Rockenbach firm as it pertain to review of our file
8 materials, and provided those. And they are part of
9 this as well.
10 Q I understand from that response that the
11 documents that we -- have produced today in response to
12 the subpoena -- were assembled into a file.
13 Could you tell us, please, where each of
14 the components of that file originated?
15 MR. IANNO: Object to the form.
16 THE WITNESS: I can't break it down by
17 document. I can tell you what we did in
18 order to gather the Epstein file materials
19 together.
20 BY MR. SCAROLA:
21 Q Thank you. Please do that.
22 A Sure. We did a -- IT did a search of all of
23 our systems, backups for anything pertaining to
24 Mr. Epstein. We looked at the various computers and
25 Outlooks for the attorneys involved in Epstein
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1 communications to gather those emails from those, to
2 the extent that they weren't in our backup.
3 It turns out they all were in backup,
4 anyway, so a duplicate of what we found otherwise.
5 We had the hard materials in our file.
6 Again, this is a 2010 through 2012 basic time
7 period. For the most part, a lot of things were
8 being printed, and so we went through the hard
9 materials we had, as well, and then gathered
10 those -- not into a single file. They are
11 maintained in a single area, which is a protected
12 database that I have access to as general counsel of
13 the firm.
14 Q What were the search terms that were used in
15 reviewing electronically stored information?
16 A I don't know all the search terms we used.
17 We tried to be as comprehensive as we could to gather
18 anything that referred to Mr. Epstein. We used the
19 file numbers. I know that. I don't know of any other
20 terms we used beyond those.
21 Q We have learned through earlier
22 representations that have been made in connection with
23 this matter that a large number of boxes were produced
24 for review to the Link & Rockenbach firm, and that
25 subsequently those boxes were delivered to that firm.
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1 Did your search encompass any of the
2 contents of those boxes?
3 A Yes.
4 Q How?
5 A As far as the documents that were delivered
6 to the Link firm, they were done in two stages. The
7 first stage, the Link firm came to our office -- I
8 believe it was Scott and mostly Tina Campbell -- to
9 review the documents.
10 They flagged certain documents that they
11 wanted to have received. We provided copies of the
12 hard documents that they wanted copied. We provided
13 duplicate of a disc -- discs, plural -- that they
14 wanted duplicated. The hard copies of the documents
15 that were delivered to the Link firm at that time, a
16 copy of those were also put into my protected
17 directory.
18 The discs were not reproduced, so we did
19 not keep anything else from the disc. They were put
20 back in the original file.
21 The second production, when we gave up the
22 entire file of everything we had on this particular
23 matter, excluding our correspondence clips, which
24 were not produced, and which we have retained in our
25 office, we did not keep a copy of those.
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1 Q How many discs were contained within the
2 boxes that were produced for review by Link at the time
3 of that initial review?
4 A I have not added them up.
5 Q As you sit here today, do you know how many
6 discs were included within those boxes?
7 A Again, I have not added them up. I just know
8 it was multiple.
9 Q Did you personally see the number of discs?
10 A I'm not sure I understand that.
11 Q Was there a point in time when you looked at
12 the discs in the boxes so that, although you didn't
13 count them, you have some impression as to the number
14 of discs that were there?
15 A I did not view the disc within the boxes that
16 were delivered.
17 Q So as you sit here today, you have no way to
18 even estimate the number of discs that were produced to
19 Mr. Link?
20 MR. IANNO: Object to the form.
21 THE WITNESS: As I sit here today, I
22 cannot duplicate (sic) the number of discs
23 that were produced to Mr. Link. I believe
24 it can be done.
25
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1 BY MR. SCAROLA:
2 Q How?
3 A When we sent the files to archives, there was
4 an index of the file materials by folder. And the
5 index itself references various discs included:
6 deposition discs, other types of discs that were in
7 there. And that would be the only way.
8 Q Do the documents that you produced today
9 include that index?
10 A No.
11 Q Is that index available?
12 A Yes.
13 Q Is there any reason why that index could not
14 be produced today? That is, do you have any reason to
15 believe that the index itself is in some way not
16 subject to production?
17 MR. IANNO: The answer is yes. To a
18 certain extent, it probably needs to be
19 redacted, depending upon what's on it,
20 because if it's anything like our file
21 index, there's probably privileged
22 information about subjects and things like
23 that.
24 MR. SCAROLA: So the answer today is, I
25 don't know.
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1 MR. IANNO: The answer is it could be
2 produced, but probably in a redacted, if not
3 entirely privileged form.
4 THE WITNESS: Further, in review of
5 that -- in review of the duces tecum, we
6 reached the conclusion jointly that it did
7 not fall within any of the areas
8 specifically defined by the duces tecum.
9 BY MR. SCAROLA:
10 Q As you sit here today, do you know how many
11 discs there were included within those 30-plus boxes
12 that contained electronically-stored information that
13 originated with the Rothstein Rosenfeldt Adler or
14 Farmer Jaffe law firms?
15 MR. IANNO: Object to the form.
16 THE WITNESS: As I sit here today, I
17 don't know if there were any discs in that
18 file that contains those materials.
19 BY MR. SCAROLA:
20 Q As you sit here today, do you know how many
21 discs there were within those files that had been
22 delivered to Fowler White in connection with procedures
23 followed responding to a subpoena that was issued to
24 the Rothstein Rosenfeldt Adler bankruptcy trustee?
25 MR. IANNO: Objection to form.
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1 THE WITNESS: We are talking about in
2 December of 2010?
3 BY MR. SCAROLA:
4 Q Yes, sir.
5 A It is my understanding, I believe, there were
6 two discs. I believe that's correct.
7 Q What were the contents of those discs?
8 A From my review of the file materials and
9 discussing the matters with the attorneys who were
10 involved in the case, approximately 27,000 or so pages
11 of documents that subsequently were dealt with in three
12 separate ways.
13 It's my understanding certain documents
14 were considered irrelevant, certain documents were
15 eventually deemed to be attorneys' eyes only, and
16 then documents contained within a privilege log.
17 Q Were the documents on the discs divided in
18 that manner?
19 MR. IANNO: Objection to the form.
20 Can you clarify which disc?
21 BY MR. SCAROLA:
22 Q The two discs that you are now referencing.
23 A I don't know how the documents I have
24 never seen those discs.
25 Q What is the basis of your statement that the
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1 documents on the discs fell into the three categories
2 that you've described?
3 A In my review of various emails at the time,
4 subsequent emails going back and forth, discussions
5 with some of the attorneys involved in the matter.
6 Q You referenced approximately 27,000
7 documents. Is that the combined total of the pages on
8 both discs that you're referencing?
9 A I believe so, because there's an email from
10 Lilly Ann Sanchez, I believe, to Seth Lehrman in which
11 that figure was contained for a number of boxes that
12 were being sent to Seth Lehrman on December 10.
13 Q Do you know how many of the 27,000 documents
14 were contained on each of the two discs?
15 A I do not.
16 Q Did Fowler White receive both discs
17 simultaneously?
18 A I believe we received materials at one time.
19 Q When?
20 A They were picked up from Judge Carney's house
21 on December 7th of 2010 and Federal Expressed from our
22 Palm Beach office to our Miami office that day;
23 received in the Miami office on December 8th, 2010, I
24 believe.
25 Q How did you make that determine -- those
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1 determinations?
2 A The review of emails in the file.
3 Q Were either of the two discs marked or
4 labeled in any way?
5 A I don't know how they were labeled, if at
6 all.
7 Q Do you know whether any discs delivered to
8 Mr. Link were labeled in any way?
9 A I don't know.
10 Q Describe for me, if you would, please, the
11 efforts that you undertook in order to be in a position
12 to speak on behalf of Fowler White during this
13 deposition.
14 MR. IANNO: Objection to form. On what
15 topics? There's none listed in the notice.
16 BY MR. SCAROLA:
17 Q Any topics.
18 A Again, I reviewed our file materials of a
19 period of time. I have talked to lawyers involved in
20 the case at the time. I have talked to their
21 assistants involved in the case at the time. I talked
22 to our IT personnel who were here at that time. I
23 talked to a file clerk who was here at that time.
24 Q Who are the lawyers within the Fowler White
25 firm at any time to whom you spoke?
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1 A I talked to Lilly Ann Sanchez, Joe Ackerman
2 and Chris Knight.
3 Q Who are the IT personnel to whom you spoke?
4 A David Tobin.
5 Q Spell the last name for us, please.
6 A T-O-B-I-N.
7 Q Who was the law clerk to whom you spoke?
8 A Chris Hewitt.
9 Q Who among those individuals is still a Fowler
10 White employee?
11 A Everybody except for Ms. Sanchez.
12 Q Did you ever speak to Judge Carney with
13 respect to any matters relating to this disc or these
14 discs?
15 A I myself have not.
16 Q Did any agent of Fowler White at any time
17 within the last year speak to Judge Carney?
18 MR. IANNO: Object to form.
19 THE WITNESS: Our attorneys.
20 BY MR. SCAROLA:
21 Q Was any information conveyed by Judge Carney
22 relayed to you?
23 MR. IANNO: That just calls for a yes
24 or no answer, or I don't know.
25 THE WITNESS: Any information, yes.
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1 BY MR. SCAROLA:
2 Q What did Judge Carney relate to you regarding
3 the disc?
4 MR. IANNO: Judge Carney didn't relate
5 anything to him, so I am instructing him not
6 to answer. All of his information came from
7 his counsel.
8 BY MR. SCAROLA:
9 Q Have you taken into consideration any of the
10 information that you received from Judge Carney in
11 giving any of the responses that you have given thus
12 far?
13 MR. IANNO: Object to the form.
14 THE WITNESS: No.
15 BY MR. SCAROLA:
16 Q Have you personally had any conversation or
17 communication with Herb Stettin regarding the matters
18 that are the subject of the contempt proceedings that
19 are pending?
20 A No.
21 Q Have you had any conversation or
22 communication with Charles Lichtman regarding the
23 subject matter of the pending contempt proceedings?
24 A No.
25 Q Have you had any conversation or
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1 communication with Robert Critton regarding the subject
2 matter of the contempt proceedings?
3 A No.
4 Q Have you any conversation or communication
5 with William Scherer regarding the subject matter of
6 the contempt proceedings?
7 A No.
8 Q Has any agent of Fowler White, to your
9 knowledge, had any communication with Herb Stettin,
10 Charles Lichtman, Robert Critton or William Scherer
11 concerning the subject matter of the contempt
12 proceedings?
13 MR. IANNO: Objection to form of the
14 question.
15 THE WITNESS: Not that I'm aware of.
16 BY MR. SCAROLA:
17 Q Upon receipt of the discs from Judge Carney
18 on December 7, what happened to them?
19 A They were Federal Expressed on the evening of
20 the 7th to our Miami office, for receipt on the 8th.
21 Q To whom were they directed in the Miami
22 office?
23 A I believe they were sent to Ms. Sanchez, but
24 I'm not positive.
25 Q What is Fowler White's understanding as to
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1 why Judge Carney delivered discs to Fowler White on
2 December 7th?
3 A For us to apply Bates stamps to the documents
4 contained on that disc, to make a copy of the contents
5 of the disc for sitting -- returning to Farmer Jaffe.
6 Q And when you talk about a copy, are you
7 talking about a hard copy?
8 A A hard copy of the contents of the disc after
9 being Bates stamped.
10 Q Why were the discs delivered to the Miami
11 office?
12 A We had the facilities in the Miami office to
13 do this job.
14 Q What happened to the discs upon their
15 delivery to the Miami office?
16 A The documents from the discs were used for
17 making a set with Bates stamps applied using our firm's
18 software. Eventually the discs were returned to Judge
19 Carney.
20 Q Were the discs duplicated in whole or in part
21 prior to returning them to Judge Carney?
22 MR. IANNO: Object to the form of the
23 question.
24 THE WITNESS: No.
25
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1 BY MR. SCAROLA:
2 Q When were the discs returned to Judge Carney?
3 A In December of 2010.
4 Q When in December of 2010?
5 A I believe, as best I can tell from the file,
6 approximately December 28th, 2010.
7 Q How many copies of the Bates-stamped contents
8 of the discs were made by Fowler White?
9 A I believe just one for sending to Farmer
10 Jaffe.
11 Q Was that copy sent to Farmer Jaffe?
12 A Yes.
13 Q How was it transmitted?
14 A By Federal Express.
15 Q When?
16 A December 10th, 2010.
17 Q Where were the discs maintained between
18 December 10, when the copying process was completed,
19 and December 28th, when they were delivered to Judge
20 Carney?
21 A I don't know.
22 Q Did Fowler White ever come into possession of
23 any other disc containing electronically-stored
24 information from either Rothstein Rosenfeldt & Adler or
25 Farmer Jaffe?
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1 MR. IANNO: Object to form.
2 THE WITNESS: I don't know for sure. I
3 believe possibly at a later date.
4 BY MR. SCAROLA:
5 Q What is the source of that belief?
6 A It is my understanding -- I have been told --
7 I do not know this from personal knowledge -- that part
8 of the file delivered to Mr. Link's office contained a
9 disc that had materials in it. That disc was contained
10 in a file folder. And in my investigation into that
11 and discussions with people, it's my belief that we
12 received that file folder at a later date than when the
13 original copying took place.
14 Q What date?
15 A I don't know.
16 Q From whom?
17 A Again, I don't know.
18 Q What effort did you make to determine where
19 this disc delivered to Mr. Link came from?
20 A I interviewed the attorneys who were
21 involved. I talked to the file clerk. I talked to the
22 assistants that we still had with us, reviewed our file
23 materials to see if there was any reference in our file
24 materials. And that's pretty much the extent.
25 Q What leads you to believe that the disc that
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1 was delivered to Mr. Link from your files originated as
2 a consequence of a disc having been delivered to Fowler
3 White at a later date than December 7, December 8 or
4 December 10?
5 MR. IANNO: Object to form. You can
6 answer if you understand.
7 THE WITNESS: Several aspects. First
8 of all, in my review of the emails at the
9 time of the original copying, Bates
10 stamping, indicate that the discs were being
11 returned to Judge Carney, as contained in an
12 email from Lilly Ann Sanchez to Mr. Lehrman,
13 I believe copied to a number of people.
14 Then we have this file folder. And,
15 again, I am going from what I have been told
16 by third parties, not related to our firm,
17 that the disc was in that file folder.
18 BY MR. SCAROLA:
19 Q Who told you that?
20 A Mr. Link's office.
21 Q Who?
22 A I don't recall.
23 Q Continue please.
24 A We took the file folder and we showed it to
25 the people I referenced earlier, if they recognized the
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1 handwriting on the file folder. Nobody recognized the
2 writing on the file folder.
3 We showed the file folder to our clerk,
4 the file clerk pursued it, asked about the
5 handwriting. He said, I don't recognize the
6 handwriting. Furthermore, I don't recognize the
7 type of file folder. That's not something that we
8 traditionally used.
9 This is all from a photograph of the
10 folder that we received.
11 Q Is that photograph in these materials that
12 you produced?
13 A No.
14 Q Continue.
15 MR. IANNO: It kind of is. This is not
16 a photograph. It's a photocopy.
17 THE WITNESS: To be clear, that is not
18 the photograph that we were shown at the
19 time.
20 MR. IANNO: No. This is an actual copy
21 of the file folder. It's just not a
22 photograph of the folder.
23 THE WITNESS: The photograph of the
24 folder actually showed the folder in more
25 detail than what was produced to you
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1 today -- or given to you today, I guess, is
2 a more proper term.
3 So between seeing the emails --
4 contemporaneous emails about the disc being
5 returned and my interviews with people, I
6 believe that we received that disc at some
7 later time.
8 I can't tell you when and from whom. I
9 have thoughts, but that's all they are.
10 BY MR. SCAROLA:
11 Q Share those thoughts with us, please.
12 MR. IANNO: No. They are just
13 speculation.
14 BY MR. SCAROLA:
15 Q That's all right. I want to hear them.
16 A Possibly from Judge Carney, when he was no
17 longer involved.
18 Q And as you say, that's nothing more than
19 speculation on your part.
20 A That's what I said at the beginning.
21 Q Have you been provided with any information
22 as to whether Judge Carney recognized the handwriting
23 on that disc?
24 A I have
25 Q The one delivered to Mr. Link.
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1 A I understand. I have not been.
2 MR. IANNO: The disc or the file
3 folder? I just want the record to be clear.
4 MR. SCAROLA: The disc.
5 BY MR. SCAROLA:
6 Q But you can also tell me about the file
7 folder. Has the handwriting on the file folder been
8 identified, to your knowledge?
9 A Not to my knowledge.
10 Q So if I understand your testimony correctly,
11 the only indication to you -- you meaning Fowler
12 White -- that this is not -- this meaning the disc
13 delivered to Mr. Link -- is not a duplicate copy of the
14 disc that was originally received by Fowler White on
15 December 7th, is the type of file folder in which it
16 was stored and the unidentified handwriting on the
17 disc. Is that correct?
18 MR. IANNO: Object to the form.
19 THE WITNESS: It's actually wrong on a
20 number of different levels.
21 BY MR. SCAROLA:
22 Q Okay. Tell me.
23 A I have no idea when that disc was burned that
24 we are talking about here.
25 MR. EDWARDS: When the disc was what?
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1 THE WITNESS: Burned.
2 If it was Judge Carney's copy, it would
3 have been a duplicate disc at about that
4 time.
5 BY MR. SCAROLA:
6 Q At about what time?
7 A When the copies were being made, and sent the
8 hard copies to Farmer Jaffe and the Bates stamps being
9 applied.
10 What I'm saying is, I do not believe that
11 that disc was maintained in our file folder from
12 that time in December until sometime later on.
13 It is not just from the handwriting or the
14 type of folder. Again, it's my review of the
15 emails. It's my review of the file and the actions
16 of lawyers over the next two years fighting over the
17 privilege log and things along those lines.
18 Also, it's my review of how our lawyers
19 handled other documents in the file.
20 Q What is it about the way that Fowler White's
21 lawyers handled other documents in the files that
22 supports your speculation about the origin of the disc?
23 MR. LINK: Object to form.
24 THE WITNESS: There was extreme care
25 being taken to ensure that documents were
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803658
1 not seen by inappropriate people. I am
2 referring particularly to the attorneys'-
3 eyes-only documents.
4 There was a request from Roy Black to
5 view these documents. At the time, there
6 were email exchanges as to whether
7 Mr. Indyke would also be entitled to see
8 those.
9 And the idea was, no, he was not going
10 to be entitled to see those, that he would
11 not be shown those, even though he was a
12 lawyer, because everybody wanted to make
13 sure that it was restricted to Mr. Black and
14 not shown outside the scope of attorneys
15 that were involved in the Alan Gray's
16 (phonetics) legal affairs -- scope of the
17 various legal affairs.
18 BY MR. SCAROLA:
19 Q Attorneys'-eyes-only documents were shared
20 with Mr. Black?
21 A I don't know if they were eventually sent to
22 him. I don't recall that kind of email. I know that
23 there was an email about him looking at attorneys'-
24 eyes-only documents, and that led to the discussion
25 they would not be shown to Mr. Indyke because of his
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803659
29
1 relationship with Mr. Epstein. And everybody was in
2 agreement with that.
3 Q Who are the lawyers who reviewed attorneys'-
4 eyes-only documents that originated on the disc?
5 A I don't know.
6 Q Who are the Fowler White lawyers who viewed
7 attorneys'-eyes-only documents on the disc?
8 A I do not know.
9 Q What effort did you make to find out who had
10 viewed attorneys'-eyes-only documents on the disc?
11 MR. IANNO: Object to form.
12 THE WITNESS: They were not part of my
13 investigation.
14 BY MR. SCAROLA:
15 Q Did Fowler White determine why it was that
16 care was being taken to restrict access to information
17 that originated on the discs?
18 MR. IANNO: Object to the form of the
19 question. That's just a yes, no, or I don't
20 know answer.
21 I'm not sure we are going to get into
22 what Fowler White actually did, but you can
23 answer that question.
24 THE WITNESS: Can you state it again,
25 please? Or read it back.
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803660
30
1 BY MR. SCAROLA:
2 Q Yes.
3 Did Fowler White determine why care was
4 being taken to restrict access to information that
5 had originated on those on that disc or those
6 discs?
7 MR. IANNO: Same objection.
8 THE WITNESS: Specifically as to why,
9 no.
10 BY MR. SCAROLA:
11 Q Did Fowler White become aware of the entry of
12 a court order that restricted access to information
13 contained on the discs.?
14 MR. IANNO: Object to the form of the
15 question.
16 THE WITNESS: I'm aware of an order
17 entered prior to delivery of the disc in
18 December. I'm aware of discussions
19 apparently regarding a confidentiality
20 order. I don't know if that was ever
21 entered subsequently.
22 BY MR. SCAROLA:
23 Q And what is it that Fowler White knows about
24 an order that was entered prior to delivery of the
25 discs on December 7?
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803661
1 MR. IANNO: Object to the form of the
2 question.
3 THE WITNESS: The order says that the
4 disc will be delivered to Fowler White, we
5 will apply the Bates stamp, send the copies
6 out, return the disc, and not retain any
7 copies within Fowler White's files.
8 BY MR. SCAROLA:
9 Q Does Fowler White agree that the retention of
10 a copy of that disc is in violation of that order?
11 MR. IANNO: Object to the form of the
12 question. Instruct you not to answer.
13 MR. SCAROLA: The basis of the
14 instruction?
15 MR. IANNO: Work-product privilege and
16 outside the scope of this deposition.
17 You're asking him to opine sitting here
18 as an expert witness on an, ultimately,
19 fact, apparently. But we are not here to
20 agree or disagree as to a court order.
21 You're here to get facts.
22 BY MR. SCAROLA:
23 Q Did Fowler White take steps to avoid
24 retention of any copy of the disc?
25 A Yes.
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803662
32
1 Q What did it do?
2 A The method of Bates stamping required that
3 the disc be utilized by Mr. Tobin in our IT department.
4 Afterwards, any reference of those discs was deleted, I
5 believe, from the program and from his desktop
6 computer, temporary folder.
7 The copies were sent to Farmer Jaffe, as
8 required; and the disc returned to Judge Carney, as
9 required.
10 Q Who was Fowler White representing at the time
11 that it undertook the task of Bates stamping and
12 producing copies of documents contained on the disc?
13 A We were attorneys of record for Mr. Epstein.
14 Q Did Fowler White understand that it was in
15 possession of information that was privileged
16 information of an adversary?
17 MR. IANNO: Object to form, but you can
18 answer if you know the answer.
19 THE WITNESS: We understood that there
20 was a claim that certain documents were
21 privileged.
22 BY MR. SCAROLA:
23 Q During the period of time in question in
24 November of 2009 and December of 2009 -- excuse me
25 of 2010, did Fowler White's attorneys keep time records
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803663
1 with respect to any services that were being rendered
2 on behalf of Jeffrey Epstein?
3 A Yes, they did.
4 Q Are those time records still available?
5 A Yes.
6 Q Are those time records part of what has been
7 produced?
8 A No.
9 Q Why?
10 A They are privileged. Also, I'm not sure
11 they're entirely responsive.
12 Q Have you reviewed them in order to make a
13 determination as to whether there are responsive
14 entries in the time records?
15 A Not for that purpose, no.
16 Q Did any support personnel keep time records
17 with respect to services rendered on behalf of Jeffrey
18 Epstein during the period of time that Fowler White was
19 representing Jeffrey Epstein?
20 A Yes.
21 Q Who are the support personnel that kept time
22 records for Epstein-related services?
23 A There would have been various paralegals who
24 were working on the file.
25 Q Who are those individuals?
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803664
34
1 A I don't recall their names.
2 Q Did you interview any of those individuals?
3 A I did not. I did not see any involvement of
4 them with the disc or handling of the disc in my review
5 of the file materials.
6 Q Did you review their time records to see
7 whether or not the time records reflected any
8 involvement with the discs?
9 A I did.
10 Q Did they?
11 A Not that I saw.
12 Q Did Mr. Tobin keep time records with respect
13 to services that related to the representation of
14 Jeffrey Epstein?
15 A No.
16 Q Does Mr. Tobin keep time records with respect
17 to any of the services that he performed?
18 A No.
19 Q Did the equipment used to generate Bates-
20 stamped copies of documents from the disc record the
21 services performed in making those copies?
22 MR. IANNO: Object to form.
23 THE WITNESS: I'm not sure I understand
24 the question.
25
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803665
1 BY MR. SCAROLA:
2 Q Photocopy machines sometimes require that an
3 individual identification number be entered by keypad
4 on the machine, and that a case number be entered
5 before the machine will function to generate copies.
6 Was any such equipment that recorded user
7 or use employed with respect to these discs at any
8 time?
9 A That -- again, it's a two-part question. We
10 had the capability at that time to put in file numbers
11 if we were going to bill copies to files. Now it's
12 mandatory. At that time it wasn't mandatory. I have
13 reviewed what was available at the time.
14 Q What did you learn as a consequence of that
15 review?
16 A That there is no indication of copies being
17 made.
18 Q Did you make a determination as to why not?
19 MR. IANNO: Object to form.
20 THE WITNESS: Just a fact.
21 BY MR. SCAROLA:
22 Q Would it not have been part of the firm's
23 policies, practices and procedures to charge 27,000
24 copies to some specific file?
25 MR. IANNO: Object to form.
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803666
1 THE WITNESS: Our copy procedures are
2 more client-dependent than they are firm.
3 As you know, we have an insurance
4 practice. All of our insurance clients have
5 different policies regarding photocopies.
6 Exceptions are made in particular instances.
7 BY MR. SCAROLA:
8 Q Was Mr. Epstein charged for copies?
9 A No.
10 Q During the period of time that Fowler White
11 was representing Mr. Epstein, was Mr. Epstein ever
12 charged for copies?
13 A I believe so.
14 Q When was he charged for copies as opposed to
15 when he wasn't charged for copies?
16 MR. IANNO: Object to form.
17 MR. LINK: Mr. Hurley, one second. I
18 think you can answer that question, but we
19 are not waiving attorney-client privilege
20 between the Fowler White law firm and
21 Mr. Epstein, so I don't want any discussion
22 about strategic decisions, okay?
23 THE WITNESS: I understand.
24 It was a general rule that in the
25 normal day-to-day, Mr. Epstein was charged
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803667
1 for copying.
2 BY MR. SCAROLA:
3 Q Why was there an exception to that rule in
4 connection with generating 27,000 plus copies in
5 connection with the task that you have described having
6 been performed in your Miami office sometime between
7 December 8th
SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE
Case No. 09-34791-RBR
Chapter 11
IN RE:
ROTHSTEIN ROSENFELDT ADLER, P.A.,
Debtor
VIDEOTAPED DEPOSITION
OF
JAMES N. HURLEY, ESQUIRE
Corporate Representative of Fowler White Burnett, PA
Friday, October 19th, 2018
10:05 a.m. - 2:29 p.m.
525 Okeechobee Boulevard, Suite 1200
West Palm Beach, FL 33401
Examination of the witness taken before
Sonja D. Hall
Palm Beach Reporting Service, Inc.
1665 Palm Beach Lakes Boulevard, Suite 1001
West Palm Beach, FL 33401
(561) 471-2995
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803632
L
1 APPEARANCES:
2 For Jeffrey Epstein:
3 LINK & ROCKENBACH, P.A.
1555 Palm Beach Lakes Boulevard, Suite 301
4 West Palm Beach, FL 33401
By SCOTT J. LINK, ESQUIRE
5 By JENNIFER LETTMAN, ESQUIRE
6
For Bradley Edwards:
7
SEARCY, DENNEY, SCAROLA, BARNHART &
8 SHIPLEY, P.A.
2139 Palm Beach Lakes Boulevard
9 West Palm Beach, FL 33409
By JACK SCAROLA, ESQUIRE
10
For Farmer Jaffe:
11
EDWARDS POTTINGER LLC
12 425 N Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301
13 By Bradley Edwards, Esquire
14 For Fowler White:
15 CARLTON FIELDS, PA
525 Okeechobee Boulevard, Suite 1200
16 West Palm Beach, FL 33401
By JOSEPH IANNO, JR, ESQUIRE
17
18 ALSO PRESENT
19 Above & Beyond Reprographics
2161 Palm Beach Lakes Boulevard, Suite 412
20 West Palm Beach, FL 33409
By Manuel Santiago, Videographer
21
22
23
24
25
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803633
1 INDEX
2
3 Videotaped Deposition of JAMES N. HURLEY, ESQUIRE Page No.
4
5 Direct Examination by Mr. Scarola 6
6 Cross-Examination by Mr. Edwards 71
7 Cross-Examination by Mr. Link 105
8 Redirect Examination by Mr. Scarola 106
9 Recross-Examination by Mr. Link 126
10 Further Redirect Examination by Mr. Scarola 127
11 Recross-Examination by Mr. Edwards 150
12 Certificate of Oath 153
13 Certificate of Reporter 154
14 Read & Sign Letter to Witness 155
15
16 EXHIBIT INDEX
17
18 Letter Description Page No
19 A Re-Notice of Taking Video Deposition 7
20 B Exhibit Numbered Documents 44
21 C Produced Subpoena Duces Tecum Documents 109
22 D Various Bates-Stamped Documents 143
23 (Sealed and retained by Mr. Scarola)
24
25
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803634
4
1 THE VIDEOGRAPHER: We are on the video
2 record. This is the 19th day of
3 October 2018. The time is approximately
4 10:05 a.m.
5 This is the videotaped deposition of
6 the corporate representative of Fowler White
7 Burnett, P.A., In Re: Rothstein Rosenfeldt
8 Adler, PA.
9 This deposition is being held at 525
10 Okeechobee Boulevard, West Palm Beach, FL
11 33401.
12 My name is Manuel Santiago. I am the
13 videographer representing Above & Beyond
14 Reprographics.
15 Will the attorneys please announce
16 their appearances for the record?
17 MR. SCAROLA: My name is Jack Scarola.
18 I am counsel on behalf of Bradley Edwards.
19 MR. EDWARDS: Brad Edwards on behalf of
20 Farmer Jaffe.
21 MR. IANNO: Joseph Ianno, Carlton
22 Fields, on behalf of Fowler White.
23 MR. LINK: Scott Link and let Jennifer
24 Lettman on behalf of Mr. Epstein.
25
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803635
5
1 THEREUPON,
2 JAMES N. HURLEY, ESQUIRE,
3 being a witness in the notice heretofore
4 filed, and being first duly sworn in the above cause,
5 testified on his oath as follows:
6 THE WITNESS: I do.
7 MR. LINK: Mr. Scarola, before we begin
8 with questions, some housekeeping matters.
9 You have a subpoena -- the notice, at
10 least, with duces tecum.
11 MR. SCAROLA: Yes.
12 MR. LINK: So we have 182 pages of
13 documents to be produced. So I'm giving you
14 what we've marked as 1 through 182.
15 We have an additional set of documents
16 that are 183 through 215, that I do not
17 believe are responsive to your notice. They
18 are Bates-numbered emails. I don't know if
19 you want to have these produced and made
20 available to everyone or not.
21 MR. SCAROLA: Are those the documents
22 that have been identified on a privilege
23 log?
24 THE WITNESS: They very well may be.
25 They have Bates numbers on them. I do not
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803636
6
1 know if they were originally identified on a
2 privilege log, subsequently removed. I
3 don't know the status of them, but they may
4 very well have been originally on a
5 privilege log.
6 MR. SCAROLA: Let me see what you have.
7 We will talk about both of the groups of
8 documents you're producing today and we will
9 decide what, if anything --
10 MR. IANNO: One group I'm producing.
11 The second group I don't believe is
12 responsive, but I will produce it, if you
13 would like a copy of them.
14 MR. LINK: You have a copy for me of
15 the second group?
16 MR. IANNO: No, because I am not
17 producing them yet.
18 MR. LINK: You delivered them.
19 MR. IANNO: No, no. I didn't deliver
20 them. He's looking at them. I only have
21 one copy. My copy.
22 DIRECT EXAMINATION
23 BY MR. SCAROLA:
24 Q Would you please state your full name?
25 A John Norford Hurley.
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803637
1 Q Mr. Hurley, how are you currently employed?
2 A I'm employed by Fowler White Burnett.
3 Q Are you appearing here today on behalf what
4 we will call Fowler White, for abbreviated purposes, in
5 response to a re-notice of taking video deposition of
6 the law firm?
7 A I am.
8 Q I am going to hand you a copy of that notice,
9 and ask you whether you have seen what has now been
10 marked as Exhibit A to this deposition previously.
11 A I have seen the notice of the deposition.
12 (Exhibit A was marked for identification.)
13 BY MR. SCAROLA:
14 Q Can you tell us, please, what role, if any,
15 you played in gathering documents that have been
16 produced in response to this notice of deposition duces
17 tecum?
18 A Together with our counsel, we reviewed
19 documents from our file to determine what was
20 responsive and what wasn't responsive.
21 Q I have been handed a package of documents,
22 which I have not yet had an opportunity to review. Can
23 you tell me, please, the procedure that was used to
24 gather those documents? Where did they come from?
25 A Those are documents which were maintained in
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803638
1 the Fowler White file. We have gathered them since
2 2017 to get all of our file materials together. We
3 have provided our file materials to our counsel.
4 I also reviewed emails from my Outlook box
5 subsequent to delivery of the files to counsel for
6 communications between myself and the Link &
7 Rockenbach firm as it pertain to review of our file
8 materials, and provided those. And they are part of
9 this as well.
10 Q I understand from that response that the
11 documents that we -- have produced today in response to
12 the subpoena -- were assembled into a file.
13 Could you tell us, please, where each of
14 the components of that file originated?
15 MR. IANNO: Object to the form.
16 THE WITNESS: I can't break it down by
17 document. I can tell you what we did in
18 order to gather the Epstein file materials
19 together.
20 BY MR. SCAROLA:
21 Q Thank you. Please do that.
22 A Sure. We did a -- IT did a search of all of
23 our systems, backups for anything pertaining to
24 Mr. Epstein. We looked at the various computers and
25 Outlooks for the attorneys involved in Epstein
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803639
9
1 communications to gather those emails from those, to
2 the extent that they weren't in our backup.
3 It turns out they all were in backup,
4 anyway, so a duplicate of what we found otherwise.
5 We had the hard materials in our file.
6 Again, this is a 2010 through 2012 basic time
7 period. For the most part, a lot of things were
8 being printed, and so we went through the hard
9 materials we had, as well, and then gathered
10 those -- not into a single file. They are
11 maintained in a single area, which is a protected
12 database that I have access to as general counsel of
13 the firm.
14 Q What were the search terms that were used in
15 reviewing electronically stored information?
16 A I don't know all the search terms we used.
17 We tried to be as comprehensive as we could to gather
18 anything that referred to Mr. Epstein. We used the
19 file numbers. I know that. I don't know of any other
20 terms we used beyond those.
21 Q We have learned through earlier
22 representations that have been made in connection with
23 this matter that a large number of boxes were produced
24 for review to the Link & Rockenbach firm, and that
25 subsequently those boxes were delivered to that firm.
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803640
10
1 Did your search encompass any of the
2 contents of those boxes?
3 A Yes.
4 Q How?
5 A As far as the documents that were delivered
6 to the Link firm, they were done in two stages. The
7 first stage, the Link firm came to our office -- I
8 believe it was Scott and mostly Tina Campbell -- to
9 review the documents.
10 They flagged certain documents that they
11 wanted to have received. We provided copies of the
12 hard documents that they wanted copied. We provided
13 duplicate of a disc -- discs, plural -- that they
14 wanted duplicated. The hard copies of the documents
15 that were delivered to the Link firm at that time, a
16 copy of those were also put into my protected
17 directory.
18 The discs were not reproduced, so we did
19 not keep anything else from the disc. They were put
20 back in the original file.
21 The second production, when we gave up the
22 entire file of everything we had on this particular
23 matter, excluding our correspondence clips, which
24 were not produced, and which we have retained in our
25 office, we did not keep a copy of those.
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803641
11
1 Q How many discs were contained within the
2 boxes that were produced for review by Link at the time
3 of that initial review?
4 A I have not added them up.
5 Q As you sit here today, do you know how many
6 discs were included within those boxes?
7 A Again, I have not added them up. I just know
8 it was multiple.
9 Q Did you personally see the number of discs?
10 A I'm not sure I understand that.
11 Q Was there a point in time when you looked at
12 the discs in the boxes so that, although you didn't
13 count them, you have some impression as to the number
14 of discs that were there?
15 A I did not view the disc within the boxes that
16 were delivered.
17 Q So as you sit here today, you have no way to
18 even estimate the number of discs that were produced to
19 Mr. Link?
20 MR. IANNO: Object to the form.
21 THE WITNESS: As I sit here today, I
22 cannot duplicate (sic) the number of discs
23 that were produced to Mr. Link. I believe
24 it can be done.
25
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803642
12
1 BY MR. SCAROLA:
2 Q How?
3 A When we sent the files to archives, there was
4 an index of the file materials by folder. And the
5 index itself references various discs included:
6 deposition discs, other types of discs that were in
7 there. And that would be the only way.
8 Q Do the documents that you produced today
9 include that index?
10 A No.
11 Q Is that index available?
12 A Yes.
13 Q Is there any reason why that index could not
14 be produced today? That is, do you have any reason to
15 believe that the index itself is in some way not
16 subject to production?
17 MR. IANNO: The answer is yes. To a
18 certain extent, it probably needs to be
19 redacted, depending upon what's on it,
20 because if it's anything like our file
21 index, there's probably privileged
22 information about subjects and things like
23 that.
24 MR. SCAROLA: So the answer today is, I
25 don't know.
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803643
13
1 MR. IANNO: The answer is it could be
2 produced, but probably in a redacted, if not
3 entirely privileged form.
4 THE WITNESS: Further, in review of
5 that -- in review of the duces tecum, we
6 reached the conclusion jointly that it did
7 not fall within any of the areas
8 specifically defined by the duces tecum.
9 BY MR. SCAROLA:
10 Q As you sit here today, do you know how many
11 discs there were included within those 30-plus boxes
12 that contained electronically-stored information that
13 originated with the Rothstein Rosenfeldt Adler or
14 Farmer Jaffe law firms?
15 MR. IANNO: Object to the form.
16 THE WITNESS: As I sit here today, I
17 don't know if there were any discs in that
18 file that contains those materials.
19 BY MR. SCAROLA:
20 Q As you sit here today, do you know how many
21 discs there were within those files that had been
22 delivered to Fowler White in connection with procedures
23 followed responding to a subpoena that was issued to
24 the Rothstein Rosenfeldt Adler bankruptcy trustee?
25 MR. IANNO: Objection to form.
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803644
1
1 THE WITNESS: We are talking about in
2 December of 2010?
3 BY MR. SCAROLA:
4 Q Yes, sir.
5 A It is my understanding, I believe, there were
6 two discs. I believe that's correct.
7 Q What were the contents of those discs?
8 A From my review of the file materials and
9 discussing the matters with the attorneys who were
10 involved in the case, approximately 27,000 or so pages
11 of documents that subsequently were dealt with in three
12 separate ways.
13 It's my understanding certain documents
14 were considered irrelevant, certain documents were
15 eventually deemed to be attorneys' eyes only, and
16 then documents contained within a privilege log.
17 Q Were the documents on the discs divided in
18 that manner?
19 MR. IANNO: Objection to the form.
20 Can you clarify which disc?
21 BY MR. SCAROLA:
22 Q The two discs that you are now referencing.
23 A I don't know how the documents I have
24 never seen those discs.
25 Q What is the basis of your statement that the
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803645
15
1 documents on the discs fell into the three categories
2 that you've described?
3 A In my review of various emails at the time,
4 subsequent emails going back and forth, discussions
5 with some of the attorneys involved in the matter.
6 Q You referenced approximately 27,000
7 documents. Is that the combined total of the pages on
8 both discs that you're referencing?
9 A I believe so, because there's an email from
10 Lilly Ann Sanchez, I believe, to Seth Lehrman in which
11 that figure was contained for a number of boxes that
12 were being sent to Seth Lehrman on December 10.
13 Q Do you know how many of the 27,000 documents
14 were contained on each of the two discs?
15 A I do not.
16 Q Did Fowler White receive both discs
17 simultaneously?
18 A I believe we received materials at one time.
19 Q When?
20 A They were picked up from Judge Carney's house
21 on December 7th of 2010 and Federal Expressed from our
22 Palm Beach office to our Miami office that day;
23 received in the Miami office on December 8th, 2010, I
24 believe.
25 Q How did you make that determine -- those
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803646
16
1 determinations?
2 A The review of emails in the file.
3 Q Were either of the two discs marked or
4 labeled in any way?
5 A I don't know how they were labeled, if at
6 all.
7 Q Do you know whether any discs delivered to
8 Mr. Link were labeled in any way?
9 A I don't know.
10 Q Describe for me, if you would, please, the
11 efforts that you undertook in order to be in a position
12 to speak on behalf of Fowler White during this
13 deposition.
14 MR. IANNO: Objection to form. On what
15 topics? There's none listed in the notice.
16 BY MR. SCAROLA:
17 Q Any topics.
18 A Again, I reviewed our file materials of a
19 period of time. I have talked to lawyers involved in
20 the case at the time. I have talked to their
21 assistants involved in the case at the time. I talked
22 to our IT personnel who were here at that time. I
23 talked to a file clerk who was here at that time.
24 Q Who are the lawyers within the Fowler White
25 firm at any time to whom you spoke?
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803647
17
1 A I talked to Lilly Ann Sanchez, Joe Ackerman
2 and Chris Knight.
3 Q Who are the IT personnel to whom you spoke?
4 A David Tobin.
5 Q Spell the last name for us, please.
6 A T-O-B-I-N.
7 Q Who was the law clerk to whom you spoke?
8 A Chris Hewitt.
9 Q Who among those individuals is still a Fowler
10 White employee?
11 A Everybody except for Ms. Sanchez.
12 Q Did you ever speak to Judge Carney with
13 respect to any matters relating to this disc or these
14 discs?
15 A I myself have not.
16 Q Did any agent of Fowler White at any time
17 within the last year speak to Judge Carney?
18 MR. IANNO: Object to form.
19 THE WITNESS: Our attorneys.
20 BY MR. SCAROLA:
21 Q Was any information conveyed by Judge Carney
22 relayed to you?
23 MR. IANNO: That just calls for a yes
24 or no answer, or I don't know.
25 THE WITNESS: Any information, yes.
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803648
1 BY MR. SCAROLA:
2 Q What did Judge Carney relate to you regarding
3 the disc?
4 MR. IANNO: Judge Carney didn't relate
5 anything to him, so I am instructing him not
6 to answer. All of his information came from
7 his counsel.
8 BY MR. SCAROLA:
9 Q Have you taken into consideration any of the
10 information that you received from Judge Carney in
11 giving any of the responses that you have given thus
12 far?
13 MR. IANNO: Object to the form.
14 THE WITNESS: No.
15 BY MR. SCAROLA:
16 Q Have you personally had any conversation or
17 communication with Herb Stettin regarding the matters
18 that are the subject of the contempt proceedings that
19 are pending?
20 A No.
21 Q Have you had any conversation or
22 communication with Charles Lichtman regarding the
23 subject matter of the pending contempt proceedings?
24 A No.
25 Q Have you had any conversation or
Palm Beach Reporting Service, Inc. 561-471-2995
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19
1 communication with Robert Critton regarding the subject
2 matter of the contempt proceedings?
3 A No.
4 Q Have you any conversation or communication
5 with William Scherer regarding the subject matter of
6 the contempt proceedings?
7 A No.
8 Q Has any agent of Fowler White, to your
9 knowledge, had any communication with Herb Stettin,
10 Charles Lichtman, Robert Critton or William Scherer
11 concerning the subject matter of the contempt
12 proceedings?
13 MR. IANNO: Objection to form of the
14 question.
15 THE WITNESS: Not that I'm aware of.
16 BY MR. SCAROLA:
17 Q Upon receipt of the discs from Judge Carney
18 on December 7, what happened to them?
19 A They were Federal Expressed on the evening of
20 the 7th to our Miami office, for receipt on the 8th.
21 Q To whom were they directed in the Miami
22 office?
23 A I believe they were sent to Ms. Sanchez, but
24 I'm not positive.
25 Q What is Fowler White's understanding as to
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20
1 why Judge Carney delivered discs to Fowler White on
2 December 7th?
3 A For us to apply Bates stamps to the documents
4 contained on that disc, to make a copy of the contents
5 of the disc for sitting -- returning to Farmer Jaffe.
6 Q And when you talk about a copy, are you
7 talking about a hard copy?
8 A A hard copy of the contents of the disc after
9 being Bates stamped.
10 Q Why were the discs delivered to the Miami
11 office?
12 A We had the facilities in the Miami office to
13 do this job.
14 Q What happened to the discs upon their
15 delivery to the Miami office?
16 A The documents from the discs were used for
17 making a set with Bates stamps applied using our firm's
18 software. Eventually the discs were returned to Judge
19 Carney.
20 Q Were the discs duplicated in whole or in part
21 prior to returning them to Judge Carney?
22 MR. IANNO: Object to the form of the
23 question.
24 THE WITNESS: No.
25
Palm Beach Reporting Service, Inc. 561-471-2995
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21
1 BY MR. SCAROLA:
2 Q When were the discs returned to Judge Carney?
3 A In December of 2010.
4 Q When in December of 2010?
5 A I believe, as best I can tell from the file,
6 approximately December 28th, 2010.
7 Q How many copies of the Bates-stamped contents
8 of the discs were made by Fowler White?
9 A I believe just one for sending to Farmer
10 Jaffe.
11 Q Was that copy sent to Farmer Jaffe?
12 A Yes.
13 Q How was it transmitted?
14 A By Federal Express.
15 Q When?
16 A December 10th, 2010.
17 Q Where were the discs maintained between
18 December 10, when the copying process was completed,
19 and December 28th, when they were delivered to Judge
20 Carney?
21 A I don't know.
22 Q Did Fowler White ever come into possession of
23 any other disc containing electronically-stored
24 information from either Rothstein Rosenfeldt & Adler or
25 Farmer Jaffe?
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803652
22
1 MR. IANNO: Object to form.
2 THE WITNESS: I don't know for sure. I
3 believe possibly at a later date.
4 BY MR. SCAROLA:
5 Q What is the source of that belief?
6 A It is my understanding -- I have been told --
7 I do not know this from personal knowledge -- that part
8 of the file delivered to Mr. Link's office contained a
9 disc that had materials in it. That disc was contained
10 in a file folder. And in my investigation into that
11 and discussions with people, it's my belief that we
12 received that file folder at a later date than when the
13 original copying took place.
14 Q What date?
15 A I don't know.
16 Q From whom?
17 A Again, I don't know.
18 Q What effort did you make to determine where
19 this disc delivered to Mr. Link came from?
20 A I interviewed the attorneys who were
21 involved. I talked to the file clerk. I talked to the
22 assistants that we still had with us, reviewed our file
23 materials to see if there was any reference in our file
24 materials. And that's pretty much the extent.
25 Q What leads you to believe that the disc that
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23
1 was delivered to Mr. Link from your files originated as
2 a consequence of a disc having been delivered to Fowler
3 White at a later date than December 7, December 8 or
4 December 10?
5 MR. IANNO: Object to form. You can
6 answer if you understand.
7 THE WITNESS: Several aspects. First
8 of all, in my review of the emails at the
9 time of the original copying, Bates
10 stamping, indicate that the discs were being
11 returned to Judge Carney, as contained in an
12 email from Lilly Ann Sanchez to Mr. Lehrman,
13 I believe copied to a number of people.
14 Then we have this file folder. And,
15 again, I am going from what I have been told
16 by third parties, not related to our firm,
17 that the disc was in that file folder.
18 BY MR. SCAROLA:
19 Q Who told you that?
20 A Mr. Link's office.
21 Q Who?
22 A I don't recall.
23 Q Continue please.
24 A We took the file folder and we showed it to
25 the people I referenced earlier, if they recognized the
Palm Beach Reporting Service, Inc. 561-471-2995
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24
1 handwriting on the file folder. Nobody recognized the
2 writing on the file folder.
3 We showed the file folder to our clerk,
4 the file clerk pursued it, asked about the
5 handwriting. He said, I don't recognize the
6 handwriting. Furthermore, I don't recognize the
7 type of file folder. That's not something that we
8 traditionally used.
9 This is all from a photograph of the
10 folder that we received.
11 Q Is that photograph in these materials that
12 you produced?
13 A No.
14 Q Continue.
15 MR. IANNO: It kind of is. This is not
16 a photograph. It's a photocopy.
17 THE WITNESS: To be clear, that is not
18 the photograph that we were shown at the
19 time.
20 MR. IANNO: No. This is an actual copy
21 of the file folder. It's just not a
22 photograph of the folder.
23 THE WITNESS: The photograph of the
24 folder actually showed the folder in more
25 detail than what was produced to you
Palm Beach Reporting Service, Inc. 561-471-2995
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25
1 today -- or given to you today, I guess, is
2 a more proper term.
3 So between seeing the emails --
4 contemporaneous emails about the disc being
5 returned and my interviews with people, I
6 believe that we received that disc at some
7 later time.
8 I can't tell you when and from whom. I
9 have thoughts, but that's all they are.
10 BY MR. SCAROLA:
11 Q Share those thoughts with us, please.
12 MR. IANNO: No. They are just
13 speculation.
14 BY MR. SCAROLA:
15 Q That's all right. I want to hear them.
16 A Possibly from Judge Carney, when he was no
17 longer involved.
18 Q And as you say, that's nothing more than
19 speculation on your part.
20 A That's what I said at the beginning.
21 Q Have you been provided with any information
22 as to whether Judge Carney recognized the handwriting
23 on that disc?
24 A I have
25 Q The one delivered to Mr. Link.
Palm Beach Reporting Service, Inc. 561-471-2995
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26
1 A I understand. I have not been.
2 MR. IANNO: The disc or the file
3 folder? I just want the record to be clear.
4 MR. SCAROLA: The disc.
5 BY MR. SCAROLA:
6 Q But you can also tell me about the file
7 folder. Has the handwriting on the file folder been
8 identified, to your knowledge?
9 A Not to my knowledge.
10 Q So if I understand your testimony correctly,
11 the only indication to you -- you meaning Fowler
12 White -- that this is not -- this meaning the disc
13 delivered to Mr. Link -- is not a duplicate copy of the
14 disc that was originally received by Fowler White on
15 December 7th, is the type of file folder in which it
16 was stored and the unidentified handwriting on the
17 disc. Is that correct?
18 MR. IANNO: Object to the form.
19 THE WITNESS: It's actually wrong on a
20 number of different levels.
21 BY MR. SCAROLA:
22 Q Okay. Tell me.
23 A I have no idea when that disc was burned that
24 we are talking about here.
25 MR. EDWARDS: When the disc was what?
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803657
2
1 THE WITNESS: Burned.
2 If it was Judge Carney's copy, it would
3 have been a duplicate disc at about that
4 time.
5 BY MR. SCAROLA:
6 Q At about what time?
7 A When the copies were being made, and sent the
8 hard copies to Farmer Jaffe and the Bates stamps being
9 applied.
10 What I'm saying is, I do not believe that
11 that disc was maintained in our file folder from
12 that time in December until sometime later on.
13 It is not just from the handwriting or the
14 type of folder. Again, it's my review of the
15 emails. It's my review of the file and the actions
16 of lawyers over the next two years fighting over the
17 privilege log and things along those lines.
18 Also, it's my review of how our lawyers
19 handled other documents in the file.
20 Q What is it about the way that Fowler White's
21 lawyers handled other documents in the files that
22 supports your speculation about the origin of the disc?
23 MR. LINK: Object to form.
24 THE WITNESS: There was extreme care
25 being taken to ensure that documents were
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803658
1 not seen by inappropriate people. I am
2 referring particularly to the attorneys'-
3 eyes-only documents.
4 There was a request from Roy Black to
5 view these documents. At the time, there
6 were email exchanges as to whether
7 Mr. Indyke would also be entitled to see
8 those.
9 And the idea was, no, he was not going
10 to be entitled to see those, that he would
11 not be shown those, even though he was a
12 lawyer, because everybody wanted to make
13 sure that it was restricted to Mr. Black and
14 not shown outside the scope of attorneys
15 that were involved in the Alan Gray's
16 (phonetics) legal affairs -- scope of the
17 various legal affairs.
18 BY MR. SCAROLA:
19 Q Attorneys'-eyes-only documents were shared
20 with Mr. Black?
21 A I don't know if they were eventually sent to
22 him. I don't recall that kind of email. I know that
23 there was an email about him looking at attorneys'-
24 eyes-only documents, and that led to the discussion
25 they would not be shown to Mr. Indyke because of his
Palm Beach Reporting Service, Inc. 561-471-2995
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29
1 relationship with Mr. Epstein. And everybody was in
2 agreement with that.
3 Q Who are the lawyers who reviewed attorneys'-
4 eyes-only documents that originated on the disc?
5 A I don't know.
6 Q Who are the Fowler White lawyers who viewed
7 attorneys'-eyes-only documents on the disc?
8 A I do not know.
9 Q What effort did you make to find out who had
10 viewed attorneys'-eyes-only documents on the disc?
11 MR. IANNO: Object to form.
12 THE WITNESS: They were not part of my
13 investigation.
14 BY MR. SCAROLA:
15 Q Did Fowler White determine why it was that
16 care was being taken to restrict access to information
17 that originated on the discs?
18 MR. IANNO: Object to the form of the
19 question. That's just a yes, no, or I don't
20 know answer.
21 I'm not sure we are going to get into
22 what Fowler White actually did, but you can
23 answer that question.
24 THE WITNESS: Can you state it again,
25 please? Or read it back.
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30
1 BY MR. SCAROLA:
2 Q Yes.
3 Did Fowler White determine why care was
4 being taken to restrict access to information that
5 had originated on those on that disc or those
6 discs?
7 MR. IANNO: Same objection.
8 THE WITNESS: Specifically as to why,
9 no.
10 BY MR. SCAROLA:
11 Q Did Fowler White become aware of the entry of
12 a court order that restricted access to information
13 contained on the discs.?
14 MR. IANNO: Object to the form of the
15 question.
16 THE WITNESS: I'm aware of an order
17 entered prior to delivery of the disc in
18 December. I'm aware of discussions
19 apparently regarding a confidentiality
20 order. I don't know if that was ever
21 entered subsequently.
22 BY MR. SCAROLA:
23 Q And what is it that Fowler White knows about
24 an order that was entered prior to delivery of the
25 discs on December 7?
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803661
1 MR. IANNO: Object to the form of the
2 question.
3 THE WITNESS: The order says that the
4 disc will be delivered to Fowler White, we
5 will apply the Bates stamp, send the copies
6 out, return the disc, and not retain any
7 copies within Fowler White's files.
8 BY MR. SCAROLA:
9 Q Does Fowler White agree that the retention of
10 a copy of that disc is in violation of that order?
11 MR. IANNO: Object to the form of the
12 question. Instruct you not to answer.
13 MR. SCAROLA: The basis of the
14 instruction?
15 MR. IANNO: Work-product privilege and
16 outside the scope of this deposition.
17 You're asking him to opine sitting here
18 as an expert witness on an, ultimately,
19 fact, apparently. But we are not here to
20 agree or disagree as to a court order.
21 You're here to get facts.
22 BY MR. SCAROLA:
23 Q Did Fowler White take steps to avoid
24 retention of any copy of the disc?
25 A Yes.
Palm Beach Reporting Service, Inc. 561-471-2995
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32
1 Q What did it do?
2 A The method of Bates stamping required that
3 the disc be utilized by Mr. Tobin in our IT department.
4 Afterwards, any reference of those discs was deleted, I
5 believe, from the program and from his desktop
6 computer, temporary folder.
7 The copies were sent to Farmer Jaffe, as
8 required; and the disc returned to Judge Carney, as
9 required.
10 Q Who was Fowler White representing at the time
11 that it undertook the task of Bates stamping and
12 producing copies of documents contained on the disc?
13 A We were attorneys of record for Mr. Epstein.
14 Q Did Fowler White understand that it was in
15 possession of information that was privileged
16 information of an adversary?
17 MR. IANNO: Object to form, but you can
18 answer if you know the answer.
19 THE WITNESS: We understood that there
20 was a claim that certain documents were
21 privileged.
22 BY MR. SCAROLA:
23 Q During the period of time in question in
24 November of 2009 and December of 2009 -- excuse me
25 of 2010, did Fowler White's attorneys keep time records
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EFTA00803663
1 with respect to any services that were being rendered
2 on behalf of Jeffrey Epstein?
3 A Yes, they did.
4 Q Are those time records still available?
5 A Yes.
6 Q Are those time records part of what has been
7 produced?
8 A No.
9 Q Why?
10 A They are privileged. Also, I'm not sure
11 they're entirely responsive.
12 Q Have you reviewed them in order to make a
13 determination as to whether there are responsive
14 entries in the time records?
15 A Not for that purpose, no.
16 Q Did any support personnel keep time records
17 with respect to services rendered on behalf of Jeffrey
18 Epstein during the period of time that Fowler White was
19 representing Jeffrey Epstein?
20 A Yes.
21 Q Who are the support personnel that kept time
22 records for Epstein-related services?
23 A There would have been various paralegals who
24 were working on the file.
25 Q Who are those individuals?
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803664
34
1 A I don't recall their names.
2 Q Did you interview any of those individuals?
3 A I did not. I did not see any involvement of
4 them with the disc or handling of the disc in my review
5 of the file materials.
6 Q Did you review their time records to see
7 whether or not the time records reflected any
8 involvement with the discs?
9 A I did.
10 Q Did they?
11 A Not that I saw.
12 Q Did Mr. Tobin keep time records with respect
13 to services that related to the representation of
14 Jeffrey Epstein?
15 A No.
16 Q Does Mr. Tobin keep time records with respect
17 to any of the services that he performed?
18 A No.
19 Q Did the equipment used to generate Bates-
20 stamped copies of documents from the disc record the
21 services performed in making those copies?
22 MR. IANNO: Object to form.
23 THE WITNESS: I'm not sure I understand
24 the question.
25
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803665
1 BY MR. SCAROLA:
2 Q Photocopy machines sometimes require that an
3 individual identification number be entered by keypad
4 on the machine, and that a case number be entered
5 before the machine will function to generate copies.
6 Was any such equipment that recorded user
7 or use employed with respect to these discs at any
8 time?
9 A That -- again, it's a two-part question. We
10 had the capability at that time to put in file numbers
11 if we were going to bill copies to files. Now it's
12 mandatory. At that time it wasn't mandatory. I have
13 reviewed what was available at the time.
14 Q What did you learn as a consequence of that
15 review?
16 A That there is no indication of copies being
17 made.
18 Q Did you make a determination as to why not?
19 MR. IANNO: Object to form.
20 THE WITNESS: Just a fact.
21 BY MR. SCAROLA:
22 Q Would it not have been part of the firm's
23 policies, practices and procedures to charge 27,000
24 copies to some specific file?
25 MR. IANNO: Object to form.
Palm Beach Reporting Service, Inc. 561-471-2995
EFTA00803666
1 THE WITNESS: Our copy procedures are
2 more client-dependent than they are firm.
3 As you know, we have an insurance
4 practice. All of our insurance clients have
5 different policies regarding photocopies.
6 Exceptions are made in particular instances.
7 BY MR. SCAROLA:
8 Q Was Mr. Epstein charged for copies?
9 A No.
10 Q During the period of time that Fowler White
11 was representing Mr. Epstein, was Mr. Epstein ever
12 charged for copies?
13 A I believe so.
14 Q When was he charged for copies as opposed to
15 when he wasn't charged for copies?
16 MR. IANNO: Object to form.
17 MR. LINK: Mr. Hurley, one second. I
18 think you can answer that question, but we
19 are not waiving attorney-client privilege
20 between the Fowler White law firm and
21 Mr. Epstein, so I don't want any discussion
22 about strategic decisions, okay?
23 THE WITNESS: I understand.
24 It was a general rule that in the
25 normal day-to-day, Mr. Epstein was charged
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EFTA00803667
1 for copying.
2 BY MR. SCAROLA:
3 Q Why was there an exception to that rule in
4 connection with generating 27,000 plus copies in
5 connection with the task that you have described having
6 been performed in your Miami office sometime between
7 December 8th