EFTA00794298.pdf

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 50-2009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, v. SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiff. / COUNTER-DEFENDANT JEFFREY EPSTEIN'S RESPONSE IN OPPOSITION TO EDWARDS' MOTION TO STRIKE EPSTEIN'S MOTION FOR IN CAMERA INSPECTION OF 30 E-MAILS Counter-Defendant Jeffrey Epstein ("Epstein") responds in opposition to Counter-Plaintiff Bradley J. Edwards' ("Edwards") November 13, 2018, Motion to Strike Epstein's Motion for in Camera Inspection of 30 E-Mails and states: INTRODUCTION Edwards knows only one path: hide and deflect from the truth. Pursuant to long- established Florida Supreme Court precedent, Epstein is required to articulate his "specific legal argument" in order to properly preserve it for appeal to the Fourth District Court of Appeal. This preservation is particularly necessary in light of this Court's recent ruling striking 126 of Epstein's trial exhibits, many of which were public records or already in Edwards' possession and which Epstein specifically identified and provided to Edwards more than eight months ago. With regard to the 30 e-mails for in camera review and this Court's ruling on procedure at the November 2, 2018 hearing, Epstein fully complied with this Court's oral ruling and written order — in both the EFTA00794298 spirit and letter of the law — by filing a motion for in camera inspection of a "generic quality" and leaving the "substantive discussion of those e-mails...under seal by way of memorandum." This is precisely what was accomplished by Epstein. Disappointingly, Edwards prefers that Epstein be silenced from making any appellate record — which simply is not the law. Edwards' unmeritorious Motion to Strike must be denied. EPSTEIN'S COMPLIANCE WITH THE COURT'S NOVEMBER 2. 2018. HEARING After ruling that Epstein would not be allowed to use certain exhibits identified since March 2018 on his Clerk's Trial Exhibit List under a Binger' analysis, this Court raised the pending issue of the 47 e-mails that Edwards claims are privileged and Epstein's pending request for an in camera review. As to those documents, the Court found: ... I think that they do have a bit of a different connotation and import as it relates to whether or not late-filed, because if they were contained in the 2010 [sic-2011] privilege log, it's very difficult to suggest that there would be prejudice as to knowledge on the part of those documents being potentially utilized. (11/2/18 Hearing Tr., 115:5-12.) 2 The Court then instructed the parties to submit briefing on the issue: So what I will need is the emails sent to my office under seal. I will be the only one to review those emails. What I then would need from you is the motion that's filed, and I don't know how there can be a viable discussion without discussing the contents of the emails in a setting that the memoranda is sent under seal, and for attorneys' eyes only. *** I think the best approach would be for a motion to be filed of a generic quality that does not mention any contents of these emails, but simply tees it up, so to speak, with the understanding on this record today that any substantive discussion of those emails will be done under seal by way of memorandum, and that will be done under seal and 'Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981). 2Excerpts of the November 2, 2018, Hearing Transcript are attached as Exhibit A. 2 EFTA00794299  will continue to be under seal, and will be filed under seal in case of a need for appellate review. So that is going to be the direction of the Court, that the motion be filed, but that the memorandum be sent under seal to this Court, hand-delivered to me, sealed. And the same response memorandum be sent to be under seal by Mr. Edwards' counsel a week later. (11/2/18 Hearing Tr., 120:17-25; 122:22-123:14.) This Court only limited Epstein to a motion "generic in nature" to the extent that the motion could not specifically quote any of the e-mails or specifically discuss their contents, which the motion most certainly did not do. However, this Court also recognized the need for Epstein's motion to "tee up" the argument and then provide the specific references to the e-mails in the sealed memorandum. The Court's oral ruling was reduced to a proposed written Order by Epstein's counsel, with one minor change by Edwards' counsel, and remained consistent with the oral ruling that any "specific" citations and references to the e-mails would be in the memorandum filed under seal. There can be no legitimate dispute — Epstein complied with the sealing of the memorandum that specifically cited to and quoted the e-mails. Edwards seems to take issue with the fact that Epstein fully (20 pages) and specifically (as required by the law) raised his legal arguments in the motion. Edwards' flawed argument avoids the obvious - Epstein never once cited or quoted a specific e-mail, despite how compelling a public argument each e-mail presents for relevance, and for no privilege or protection in light of Edwards' defective and misleading privilege log and Edwards' sworn testimony in this lawsuit. Rather, Epstein complied with Florida law by articulating his specific legal arguments as to why the e- mails are relevant, never had any attorney-client privilege, no longer have protection of work- product given Edwards' noncompliance with Florida Rules of Civil Procedure and a defective, if not worse, privilege log, as well as producing all of the 27,542 e-mails to an adversary, issue 3 EFTA00794300 injection (Edwards' sworn testimony) and the crime fraud exception found in the Florida Evidence Code. FLORIDA SUPREME COURT REOUIRES SPECIFIC LEGAL ARGUMENT FOR APPELLATE PRESERVATION Edwards' trial counsel knows the law, having been involved in at least one appeal addressing this legal tenet. See Eagleman v. Korzeniowski, 924 So. 2d 855, 860 (Fla. 4'h DCA 2006)("In order to be preserved for appellate review, the specific argument made on appeal must have been raised when the party objected in the trial court.") In fact, the Fourth District Court of Appeal concluded that, "[i]t defies logic for a party to expect to be able to take no position on an issue in the trial court and then take whatever position is most advantageous to it on appeal; a party must take some position below in order for this court to review how the trial court ruled on that position." Id. at 859. In Edwards' view of the law, Epstein should be darned if he does, darned if he does not. Had Epstein not articulated the specific legal bases in his motion, Edwards would have claimed "lack of preservation" on appeal! See Diaz v. Wells Fargo Bank, N.A., 189 So. 3d 279, 282 (Fla. 5'h DCA 2016)("To preserve an issue for appellate review, "the specific legal ground upon which a claim is based must be raised at trial....") citing Allis v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010); Cadavieco v. Castle Key Ins. Co., 246 So. 3d 501 (Fla. 3d DCA 2018)(affirmed citing civil cases holding that in order to be preserved for appellate review, issue must be presented to lower court and the specific legal argument raised). Accordingly, Epstein complied with this Court's Order — and Florida law — by making his specific legal argument and being "generic" in his reference to the e-mails. Not once did Epstein quote or specifically reference an e-mail in his motion. In addition, Epstein did not say anything in his motion that has not already been said multiple times before in public filings. 4 EFTA00794301  EDWARDS' NOVEMBER 2017 DEPOSITION In denying Epstein the right to use exhibits identified on his March 2018 Clerk's Trial Exhibit List, the Court commented that, because Epstein did not question Edwards about the documents during his November 2017 deposition, Edwards was prejudiced under a Binger analysis: COURT: [W]hen you took Mr. Edwards' deposition in December [sic-November] of 2017, he was not provided with these documents to be able to discuss them, to be able to review them, even if it was at his deposition you said, look, here's public records that you probably are not totally aware of, you may be, you may not be, but here they are. Mr. Scarola may have objected, may have requested the termination of the deposition to seek a protective order so that he, Mr. Edwards, would have the opportunity to properly prepare his testimony in relation to these records. Because if I'm gathering what I think I'm going to gather by way of your response --- he wasn't given these records at his deposition, correct? MR. LINK: They weren't, and I never would do that in a deposition, Your Honor. Why do I have to show him my cross? What in the rule says I have to confront him at deposition with exhibits that I want to use at trial? *** COURT: ... [T]he overarching, the pervasive rule of, we are not going to competence trial by ambush. MR. LINK: Sir, that's why they're listed on the exhibit list. I don't have to ask him during deposition. *** COURT: My respectful point is that in order to properly prepare for one of the most critical parts of a case, that being the plaintiff's deposition, especially where here it's coming almost ten years after a given case has been filed, that that party has the opportunity to prepare themselves with what is going to be confronting them relative to the material elements of the case. (11/2/18 Hearing Tr., 85:9-87:10.) 5 EFTA00794302  First, as Epstein's counsel argued during the November 2, 2018, hearing, there is absolutely no rule that requires that a witness be shown at deposition every exhibit that is going to be used for cross during trial. Nevertheless, at the time of Edwards' November 10, 2017, deposition the parties had not even filed their final Exhibit Lists (i.e., Epstein filed his Amended Exhibit List on November 16, 2017 and Edwards filed his Second Amended Exhibit List on December 7, 2017). Epstein points this out to make sure if the Court requires that Edwards be deposed on the 30 e- mails that Epstein is prepared to take Edwards' deposition and will ask Edwards all about the 30 e-mails. The Court is fully aware that the issues of striking exhibits and privilege determinations will result in one side or the other filing an appeal. Thus, a detailed appellate record is necessary and that taking shortcuts on preserving that record would cause even more prejudice to Epstein. EDWARDS COMMITTED THE PRECISE FOUL HE CLAIMS AGAINST EPSTEIN Edwards himself has repeatedly emphasized in his own multiple public filings the complained of references by Epstein to the e-mails: D.E. Date Document D.E. 1257 03/06/18 Edwards' Response to Epstein's Motion for Court to Declare Relevance and Non-Privileged Nature of Documents, etc. ¶ 5 - "In his Notice of Filing Appendix, Epstein, through counsel, includes privileged materials under a section titled 'Edwards' Direct Involvement in Rothstein's Ponzi Scheme.' If nothing but consistent, Epstein, through counsel, then sprinkles throughout the Motion for Court to Declare Relevance direct accusations and implicit insinuations that, regardless of whether Epstein had probable cause to institute or continue his malicious lawsuit against Edwards, it turns out that Edwards was secretly involved in the Ponzi scheme after all! For example, Epstein claims that the emails are "evidence that shows [Edwards] direct participation with Rothstein to avoid the structured settlement statute for an Epstein case" and questions whether these e- mails "were turned over to the U.S. Attorney." D.E. 1318 04/03/18 Edwards' Motion for Sanctions for Violation of Court Order (withdrawn) — quoting Epstein's statements: 6 EFTA00794303  D.E. I Date I Document ¶ 12 - "Second, the alleged eight-year-old "confidential" information to which Edwards refers is 47 exhibits comprised of a series of communications between Edwards and other attorneys, including Scott Rothstein, that eviscerate Edwards' case against Epstein in its entirety . . . Moreover, on their face, all of these eight-year-old communications clearly show that Edwards' claims of work product simply do not apply. These inculpatory communications cannot constitute work-product. They directly relate to issues that Edwards himself has made central to this case and their content provides independent grounds to reject work product protection, including both the crime fraud exception and potential unprofessional conduct . .. the trial court refused to evaluate these issues, choosing instead to exclude the communications on the basis of what the Court believed was Epstein's untimely request to identify them on his Exhibit List." ¶ 14 - "Included among those issues to be perfected at the trial court is Edwards' errant claim of 'privilege' which remains a cloud below preventing the admission of crucial evidence that Epstein maintains is dispositive of this case. That evidence must be reviewed in camera by the trial court while the appellate issues are under review. Consistent with this Court's interest in 'fairness' and 'efficient use of the trial court's time and resources,' Epstein will be narrowing his request for in camera review down from 27,000 pages to a readily manageable fraction, 47 exhibits numbering approximately 100 pages." ¶ 15 - "In fact, Edwards' counterclaim is thoroughly disproved by direct documentary evidence of Edwards' own misconduct and credibility that Epstein is currently asking the trial court to review for presentation to the jury when this case is tried." ¶ 17 - "Recent events (appeal and stay) and the discovery of e-mails that totally eviscerate Counter-Plaintiff Bradley J. Edwards' ("Edwards") claims and shines a light on his true motivation have prompted unprofessional behavior from Edwards and his counsel evidenced by the unilateral setting of hearings, certificates of conferring that never happened and intentional ex parte attendance at a hearing despite knowing of Epstein's counsel's unavailability." 4th DCA 04/03/18 Edwards' Motion to Strike All References to the Alleged Contents of Material Which Epstein and His Counsel Unlawfully Possessed - - quoting Epstein's statement (Denied by the 4th DCA) ¶ 7 - "In fact, Edwards' counterclaim is thoroughly disproved by direct documentary evidence of Edwards' own misconduct and credibility that Epstein is currently asking the trial court to review for presentation to the jury when this case is tried." Edwards cannot complain about Epstein's "generic" references when Edwards himself has repeatedly highlighted and emphasized those statements multiple times in his own publicly filed documents! 7 EFTA00794304  EDWARDS' RECOGNITION OF WAIVED WORK PRODUCT More likely than not, Edwards makes this desperate "striking" attempt to again hide the truth by claiming Epstein disregarded this Court's rulings and the "sacrosanct nature of a privilege assertion" because Edwards knows he is in trouble. Despite his belated claims of sacrosanct privilege (which the Court can plainly see does not exist in any one of the e-mails), Edwards clearly waived any work-product protection he may have had by — among other compelling reasons -- his complete failure to comply with Florida Rule of Civil Procedure 1.280(b)(6). With Epstein's citation in his motion to the Fourth District Court of Appeal's controlling case of General Motors Corp v. McGee, 837 So. 2d 1010 (Fla. 4'h DCA 2002), Edwards is about to suffer the same fate as GM based on his Rule 1.280-noncompliant privilege log and the central issues to Edwards' lawsuit that the e-mails implicate. As the trial judge in the GM case, this Court cannot: as suggested by Counsel [asserting the privilege], simply forget about these documents and continue on with this trial as though they don't exist. This Court still adheres to the belief that: "We who labor here seek only truth." Id. at 1025. In fact, McGee establishes the very legal basis why Epstein had to articulate Edwards' deliberate attempt to "conceal" the e-mails in a misleading privilege log, falsely assert attorney- client privilege where none existed between an attorney and client, issue injection given his deposition testimony in this lawsuit as recently as November 2017, and the crime-fraud exception found in section 90.502, Florida Statutes. In truth, there is nothing violative of this Court's order to argue that the e-mails are "case-ending." That is argument, not specific citation to the content of the e-mails. 8 EFTA00794305  CONCLUSION Edwards' Motion to Strike must be seen for what it is — yet another attempt to divert those "who labor here seek[ing] only truth." Epstein complied with this Court's ruling and Florida law in filing a motion for in camera review of 30 e-mails, not once citing or specifically referencing the e-mails' content, but raising "specific legal argument" as required by law. Epstein next followed both the spirit and letter of the law in filing under seal his memorandum which quoted and cited the specific 30 e-mails which never were protected by attorney-client privilege, have no arguable work product cloak given Edwards' actions with waiver and a non-compliant privilege log designed to deceive the recipient — Epstein. Edwards' attempt to hide the truth must be denied and the e-mails be illuminated by the light of this courtroom. CERTIFICATE OF SERVICE I certify that the foregoing document has been furnished to the attorneys listed on the Service List below on November 14, 2018, through the Court's e-filing portal pursuant to Florida Rule of Judicial Administration 2.516(b)(1). SIM By: Scott J. Link (FBN 602991) Kara Berard Rockenbach (FBN 44903 Counselfor Counter-Defendant Jeffrey Epstein 9 EFTA00794306  SERVICE LIST Jack Scarola Philip M. Burlington Karen E. Teny Nichole J. Segal David P. Vitale, Jr. Burlington & Rockenbach, P.A. Searcy, Denny, Scarola, Barnhart & Shipley, P.A. Courthouse Commons, Suite 350 2139 Palm Beach Lakes Boulevard 444 West Railroad Avenue West Palm Beach, FL 33409 West Palm Beach, FL 33401 [email protected] [email protected] [email protected] [email protected] [email protected] [email protected] scarolateamasearcylaw.com Co-Counselfor Defendant/Counter-Plaintiff [email protected] Bradley J. Edwards Co-Counselfor Defendant/Counter-Plaintiff Bradley J. Edwards Bradley J. Edwards Marc S. Nurik Edwards Pottinger LLC Law Offices of Marc S. Nurik 425 N. Andrews Avenue, Suite 2 One E. Broward Boulevard, Suite 700 Fort Lauderdale, FL 33301-3268 Ft. Lauderdale, FL 33301 [email protected] [email protected] Co-Counselfor Defendant/Counter-Plaintiff Counselfor Defendant Scott Rothstein Bradley J. Edwards Jack A. Goldberger Paul Cassell Atterbury, Goldberger & Weiss, P.A. 383 S. University St. 250 Australian Avenue S., Suite 1400 Salt Lake City, UT 84112-0730 West Palm Beach, FL 33401 cassellpalaw.utah.edu igoldbergerRagwpa.com LimitedIntervenor Co-Counselfor L.M., E.W. [email protected] and Jane Doe Co-Counselfor Plaintiff/Counter-Defendant Jeffrey Epstein Jay Howell Jay Howell & Associates 644 Cesery Blvd., Suite 250 Jacksonville, FL 32211 iay(ajavhowell.com LimitedIntervenor Co-Counselfor L.M., E.W. and Jane Doe 10 EFTA00794307