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IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION AG
CASE NO. 502009CA040800XXXXMB
Judge David F. Crow
JEFFREY EPSTEIN,
Plaintiff/Counter-Defendant,
v.
SCOTT ROTHSTEIN, individually, and
BRADLEY J. EDWARDS, individually,
Defendants/Counter-Plaintiffs.
PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT
EDWARDS' RENEWED MOTION FOR SUMMARY JUDGMENT
Plaintiff, Jeffrey Epstein ("Plaintiff" or "Epstein"), hereby files the following Response in
Opposition to Defendant Bradley J. Edwards' ("Edwards") Renewed Motion for Summary
Judgment ("Motion") and states as follows:'
SUMMARY OF ARGUMENT
Edwards' Renewed Motion for Summary Judgment should be denied for numerous
reasons. First, Epstein has not had an opportunity to conduct discovery essential to refute
Edwards' arguments. Edwards' insufficient privilege log has tied relevant discovery in knots.
Second, Edwards filed a "Statement of Undisputed Facts" with exhibits — all of which violate
Rule 1.510 and should be stricken. The "undisputed facts" are impertinent and entirely
irrelevant, as are the unswom and unauthenticated exhibits on which Edwards improperly relies
Nothing factually new has been submitted by Edwards. The Statement of Undisputed
Facts is identical to the one used for Edwards' first Motion for Summary Judgment.
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Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
to obtain summary judgment. Third, Edwards has not demonstrated the absence of material
issues of fact. His alleged participation in and/or knowledge of the Rothstein Ponzi scheme and
the validity of, and motivation in conducting, the discovery at issue in the underlying Epstein
actions are matters of considerable debate. Finally, as a matter of law, Edwards cannot secure
summary judgment on the basis of the sword and shield doctrine or the litigation privilege.
STATEMENT OF THE CASE
A. Delay in Discovery Pending Resolution of Pleadings
On December 7, 2009, Jeffrey Epstein filed his Complaint against Bradley J. Edwards
and Scott Rothstein, seeking damages based on a scheme involving the marketing of investments
in lawsuits brought against the Plaintiff. Edwards filed his Answer and Counterclaim for Abuse
of Process on December 21, 2009.
On or about August 24, 2011, Epstein filed a narrowly-drawn Corrected Second
Amended Complaint, consisting of a single count against Edwards for abuse of process, and a
single count against Rothstein for conspiracy to commit abuse of process. Epstein alleged that
Edwards committed abuse of process by filing the Federal ■. action, deposing Epstein's airline
pilots and brother without asking any questions regarding the claims of Edwards' clients,
noticing for deposition famous acquaintances of Epstein who had no knowledge of the claims,
issuing a subpoena to a doctor who never treated Epstein, seeking health-related documents
when Epstein's health was not at issue, and filing an unfounded motion to freeze Epstein's assets.
From April 11, 2011 to November 17, 2011, the Court had stayed discovery until the Plaintiff
had a Complaint which survived a Motion to Dismiss.
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Epstein's Response in Opposition to Edwards' MSJ
B. RR:', Bankruptcy - Efforts to Get Records
On May 18, 2010, Judge Raymond Ray, Bankruptcy Judge for the United States
Bankruptcy Court for the Southern District of Florida ("Bankruptcy Court") entered an order that
established the process for anyone wishing to obtain discovery from the Trustee. The operation
of the Order was not limited to parties in the bankruptcy case. Further, the Bankruptcy Court
determined it had jurisdiction and retained jurisdiction with respect to all matters arising from or
related to the implementation or the interpretation of its Order without any limitation on the form
(A:1).
On July 14, 2010, Plaintiff filed a Motion to Compel Production of Documents from the
Trustee pursuant to the document production protocol established by the aforesaid Order (A: 2).
On August 4, 2010, the Bankruptcy Court conducted a hearing on Plaintiffs Motion to
Compel and entered an Order on August 13, 2010 appointing former Broward County Circuit
Court Judge Robert Carney as Special Master to review the documents responsive to the
Plaintiff's subpoena served on the Trustee, to determine the applicability of any privileges
asserted by ■., Bradley Edwards, or other former clients of Farmer Jaffee, where Edwards
presently works, and to prepare a privilege log. The Plaintiff, without objection, agreed and
was ordered to pay the legal fees and costs incurred by the Special Master in the preparation of
this log (A :5). Prior to the hearing, two motions in opposition were filed by Farmer Jaffee (A:
3 and 4).
Subsequently, on October 13, 2010, the Special Master filed a motion seeking
clarification of the Order appointing him (A: 7). Farmer Jaffee filed another motion in
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Epstein's Response in Opposition to Edwards' MSJ
opposition (A: 8 and 9). A hearing took place and an Amended Order was entered, which
allowed Farmer Jaffee to review and assist in the preparation of the privilege log (A: 10).
Farmer Jaffe received a portion of the electronically stored data on October 17, 2010 and was
required to prepare a detailed privilege log within thirty (30) days of receipt of the compact disk,
i.e., on or before November 15, 2010, at its cost (A: 10).
On November 2, 2010, ■. and Bradley Edwards filed a Motion for Relief from the
Amended Order and sought to have the Plaintiff pay for the production of all documents and fees
associated with the privilege log, which previously had been ordered by the Court for Farmer
Jaffe to pay. In addition, Farmer Jaffe and Edwards asked for more time (A: 12). As a result of
the Motion, an Agreed Order was entered granting additional time, and the Plaintiff agreed to
pay the cost of making physical copies of the documents on the compact disks for the purpose of
making it more convenient for Fanner Jaffee to prepare the privilege log (A: 13).
Even though Farmer Jaffee had received one compact disk on October 19, 2010 and
received another compact disk on or about November 15, 2010 from the Trustee, on December
16, 2010, Fanner Jaffee filed an emergency motion, after agreeing to the Order granting
additional time, not only for an extension of time but also for a stay in the preparation of the
privilege log pending its Motion for Summary Judgment to be heard by this Court (A: 16).
Edwards filed a similar motion with this Court which is presently set for hearing on January 27,
2011.
On December 21, 2010, the Bankruptcy Court conducted a hearing and entered an Order
allowing through January 31, 2011 for the privilege log to be prepared (A: 17).
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Epstein's Response in Opposition to Edwards' MSJ
[ADD PRIVILEGE HISTORY - PENDING MOTION.]
C. Present Renewed Motion for Summary Judgment
On November 4, 2011, Edwards filed a Renewed Motion for Final Summary Judgment
on the ground that Epstein could not seek affirmative relief because he had invoked the Fifth
Amendment at his deposition; Edwards' conduct was protected by a "litigation privilege;" and
Edwards was not involved in the Ponzi scheme (D.E. 390). On or about November 7, 2011,
Edwards filed a "Statement of Undisputed Facts" dated November 2, 2010 (D.E. 393), which is
exactly the same "Statement of Undisputed Facts" that he filed in September 2010 for his initial
Motion for Summary Judgment.
Nothing has changed in this recitation of "Facts," even though depositions of investors
have occurred which present disputed facts under oath based on personal knowledge, which is
just about all that Edwards presents here.
ARGUMENT
LEGAL FRAMEWORK FOR SUMMARY JUDGMENT MOTIONS
In order to obtain summary judgment against Epstein, Edwards must show: (1) the
nonexistence of a material factual issue, and (2) entitlement to judgment as a matter of law. Fla.
R. Civ. P. 1.510(c), (2006). In Florida, the party moving for summary judgment must
conclusively demonstrate the nonexistence of an issue of material fact, and the court must draw
every possible inference in favor of the party against whom summary judgment is sought.
Summary judgments should be cautiously granted, and the trial court should not enter summary
judgment unless the facts are so crystallized that nothing remains but questions of law. If the
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Epstein's Response in Opposition to Edwards' MSJ
evidence will permit different reasonable inferences, it should be submitted to the jury as a
question of fact, and summary judgment should not be granted. McCraney v. Barberi, 677 So.
2d 355, 357 (Ha. 1s' DCA 1996); Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Ha. 4'h DCA
1996). Finally, summary judgments are not favored. O'Connor v. Marston, 717 So. 2d 82 (Ha.
5th DCA, 1998).
It is also necessary for the movant to authenticate the undisputed facts upon which its
claim for summary judgment is based. Most of the facts and assertions contained throughout
Edwards' motion are unauthenticated and cannot form the basis for any summary judgment. Ha.
R. Civ. P. 1.540; Bifidco v. State Farm Mutual Automobile Insurance Co., 693 So.2d 707 (Fla.
4th DCA 1997).
Pursuant to Fla. R. Civ. P. I.510(c), a motion for summary judgment must specifically
identify "materials as would be admissible in evidence...on which the movant relies." Statements
in an affidavit that are irrelevant to the claims in suit cannot be considered on a motion for
summary judgment. See, e.g., Food Fair Stores, Inc. v. Dwell, 131 So 2d 730 (Fla. 1961).
An affidavit based on hearsay does not provide a basis for summary judgment. See, e.g.,
Castro v. Brazeau, 873 So. 2d 516 (Fla. 4th DCA 2004). By the same token, conclusory
allegations in an affidavit do not raise issues of facts and should be stricken. See, e.g., Reinke v.
O'Connell, 790 F. 2d 850, 851-52 (11th Cir. 1986).
Finally, summary judgment should not be granted until all discovery has been completed.
See, e.g., Sica v. Sam Caliendo Design, Inc., 623 So.2d 859 (Fla. 4th DCA 1993).
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Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
SUMMARY JUDGMENT MAY NOT BE GRANTED FOR
EDWARDS BECAUSE CRITICAL DISCOVERY HAS BEEN
STALLED
1. Documents. Plaintiff has been attempting since last spring to obtain discovery of
communications, primarily in the form of emails originated and received at RRA with the intent
to depose appropriate witnesses after having had an opportunity to review the content of the
documents. To this end, Plaintiff served a subpoena on the bankruptcy Trustee appointed to
stand in the place of the now-defunct firm's management since before this case was filed. The
subpoena resulted in proceedings before Honorable Judge Ray of the U.S. Bankruptcy Court,
who appointed a Special Master. In response to several Orders entered by Judge Ray, Edwards
filed a I59-page privilege log claiming that over 200 documents were privileged. Epstein has
moved to compel production of documents by Edwards on the ground that the privilege log was
woefully insufficient. A hearing on Epstein's Motion to Compel Production of Documents by
Defendant Bradley Edwards and for Sanctions is pending.
2. Rothstein Deposition. For the first time, on July 1, 2011, the District Court
authorized Rothstein's deposition to begin on December 12, 2011, granting a stay to the
government. Epstein sought leave of the Bankruptcy Court to take the deposition of Scott
Rothstein on December 1, 2011. At that time, Judge Ray denied the Motion without prejudice,
because there was no time in the schedule to depose Mr. Rothstein.
The deposition of Scott Rothstein was taken in the bankruptcy proceeding of Rothstein,
Rosenfeldt and Adler ("RRA"), but not completed, from December 12, 2011 through December
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Epstein v. Rothstein and Edwards
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Epstein's Response in Opposition to Edwards' MSJ
22, 2011, by Order of Judge Cohn, the Federal judge presiding over Rothstein's criminal case.
Only a limited number of parties had an opportunity to question Rothstein during that time.
On January I I, 2012, Epstein filed a Renewed Motion to Depose Scott Rothstein. On
February 1, 2012, Epstein's Renewed Motion was heard by Judge Ray, who denied it without
prejudice to seek leave from Judge Cohn to be allowed to participate in the second deposition.
Epstein then filed a Motion for a Writ of Habeas Corpus Ad Testificandum to Depose Scott
Rothstein, which Motion was granted by Judge Cohn on February 13, 2012. Judge Cohn
ordered that the second deposition take place from June 4, 2012 through June 15, 2012. Up
until now, Epstein has not had an opportunity to depose Rothstein; and as the record
demonstrates, he has proceeded with all due diligence to take Rothstein's deposition.
Rothstein's testimony is critical in the instant case. He is the central figure with
personal knowledge of material facts relating to Epstein's claims against Rothstein and Edwards.
Some of the relevant documents that Epstein has obtained show, among other things, that
Rothstein was involved in supervising and/or managing the Epstein cases; the Rothstein firm
developed a strategy to go after those persons closest to Epstein; RRA files of the Epstein cases
were shown by Rothstein to the Razorback investors; the purpose of the Ponzi scheme was to
personally enrich Rothstein and other co-conspirators and to supplement the income and sustain
the daily operation of RRA; to achieve this purpose Rothstein and other co-conspirators utilized
the offices of RRA and the offices of other co-conspirators to convince potential investors of the
legitimacy and success of the law firm, which enhanced the credibility of the purported
investment opportunity; RRA relied upon the Ponzi scheme to supplement and support the
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Epstein's Response in Opposition to Edwards' MSJ
operation and activities of RRA, to expand RRA by the hiring of additional attorneys and support
staff, to fund salaries and bonuses, and to acquire larger and more elaborate office space and
equipment in order to enrich the personal wealth of the persons employed by and associated with
RRA.
Thus, Rothstein's testimony is critical to the issues raised in Edwards' summary judgment
motion. It is essential that Epstein be able to ask Rothstein to be able to authenticate documents
he authored and to question him about his actions in marketing the Epstein litigation to the
Razorback investors. Rule 1.510(f) provides that a court may refuse the application for
summary judgment or order a continuance for depositions or discovery to be taken. Pursuant to
Rule 1.510(f), summary judgment is premature because extensive discovery is pending. See,
e.g., Sica, 623 So. 2d at 860 (reversing grant of summary judgment where properly-noticed
deposition had not as yet been taken); Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987)
("Facts upon which the court based its decision were not fully developed because discovery was
in progress, and depositions were pending. Summary judgment was therefore premature.").
Epstein submits that this case is not the normal run-of-the-mill, slip and fall tort case or
breach of contract case. A former law firm with 77 lawyers collapses when its leader
perpetrates a giant, gigantic fraud brought about by use of the law firm. The principal member
and person most knowledgeable of the events has pled guilty and has been sentenced to 50 years
in prison. If one were to go on the United States Bureau of Prisons' website, he or she would
not find Scott Rothstein listed as a prisoner incarcerated there. He remains under high security
protection. Various efforts to depose him have only recently been successful, with Judge
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Epstein v. Rothstein and Edwards
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Epstein's Response in Opposition to Edwards' MSJ
Cohn's ruling, giving the United States government up until December 1, 2011 to complete its
investigation for any other indictments arising out of this law firm fraud.
The law firm itself is in Chapter 11 Bankruptcy. The Trustee has commenced
approximately 127 adversary proceedings in order to reclaim law firm funds dissipated for the
purpose of this Ponzi scheme. It is not a simple process of subpoenaing the documents that
related to this firm. First, they are under the control of the U.S. Bankruptcy Court, not this
Court. Second, and more importantly, all of the documents were created by a law firm and are
subject to numerous privilege challenges. Even the government has had ( order ) two teams of
lawyers reviewing in excess of six figures of documents for privilege issues for their indictment.
Certainly that takes precedence over a civil action. And, as Judge Cohn noted, Epstein was
lucky to be able to depose Rothstein. Under normal circumstances ( insert cite ), a writ of
habeas corpus from a State Court to the Bureau of Prisons is unenforceable and is subject
completely to the discretion of the Bureau of Prison Officials ( CVR cite ).
It is simply not realistic, believable, or fair to allow Mr. Edwards to oppose every effort
by Epstein to get documents or to prepare the case, while t the same time seeking to fast track
two — not one — but two summary judgment motions on a matter that is clearly not concluded or
ready or ripe for summary judgment hearing.
As previously argued, Epstein respectfully renews its Motion to either deny Edwards'
Motion as not ripe or postpone it until further discovery has been able to take place.
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Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
EDWARDS' SUMMARY JUDGMENT MOTION MUST BE
DENIED BECAUSE HIS "STATEMENT OF UNDISPUTED
FACTS" IS SCURRILOUS AND IRRELEVANT
On November 3, 2011, Edwards served a Renewed Motion for Summary Judgment
together with a thirty-seven (37) page "Statement of Undisputed Facts," consisting of 120
separate paragraphs, most of which are either not material at all or, where arguably material, are
nonetheless disputed. At best only paragraphs 86 through 91 bear on the subject of this lawsuit.'-
In support of these 120+ allegedly "undisputed" facts, Edwards served an eight-inch tall
stack of "47 exhibits" and 22 "attachments" numbered respectively from "A" to "UU" and "1" to
"22". Collectively, we refer to these materials as the "Supporting Papers." Among these
Supporting Papers are 22 transcripts of depositions or excerpts of depositions — the
"Attachments" — most of which were taken prior to the filing of this action in 2009 and before.
The other "Exhibits" are a compendium of unswoni letters, pleadings and other court filings,
hearing transcripts, an unauthenticated copy of what purports to be a plea agreement between
Scott Rothstein and the government,; unsigned drafts, unsigned answers to interrogatories from
2 Nevertheless, Edwards fills 35 pages with facts that are not material to any issue in this
case for the apparent purpose of prejudicing Plaintiff in this Court with a gratuitous and graphic
recount of alleged conduct not in issue in this case, such as Plaintiffs alleged sexual exploits
with clients of Edwards. There can be no other reason, since the Plaintiff has not placed those
matters in issue. Edwards persists in attempting to use sex to shift the focus from his own
conduct.
3 See Exhibit "SS." The statement of facts incorporated into the plea agreement refers
throughout to Rothstein and "other co-conspirators" without naming those others. It intimates
that others working at RRA knew of the Ponzi scheme and conspired to advance the criminal
enterprise. Plaintiff believes Edwards is such a person, notwithstanding Edwards' production
of an unswom form letter from a Federal victim witness specialist identifying him as a possible
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Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
another case, New York Post and other media publications, items (such as phone messages)
allegedly garnered from Plaintiff and others pursuant to search warrants in criminal
investigations of Plaintiff, a purported copy of a visitor log from the Palm Beach County
Sheriffs Office, flight logs, and other documents the materiality of which is not facially
apparent.'
Edwards' Statement of Material Facts is a nasty mass of entirely irrelevant statements
based on hearsay and otherwise inadmissible materials that do not conform to the Rules of Civil
Procedure. It is a bad faith, if not reprehensible, attempt to smear and embarrass Epstein and
others under the guise of compliance with Rule 1.150(c). Although Edwards relies on the
following portion of Rule 1.510(c) to justify his submission, such reliance is misplaced because
Edwards is the movant, not the adverse party: " The adverse party shall . . . identify any
summary judgment evidence on which the adverse party relies . . ." No portion of Rule 1.150
authorizes the filing of hundreds of immaterial and impertinent "facts" in support of summary
judgment, particularly where the motion itself does not depend upon proof of such "facts."
victim of Rothstein (Exhibit "TT"), but has not yet been provided the documentary evidence he
has been seeking to use against Edwards.
4 For example, Attachment "I" purports to be a 183-page deposition of Plaintiff in a case
styled M. v. Jeffrey Epstein then pending in this Court, but the copy of the transcript is not
signed and certified by the court reporter or otherwise authenticated and is therefore inadmissible.
Attachment "2" consists of an excerpt of 9 pages of the purported transcript of a deposition of a
Jane Doe which apparently in its entirety is more than 568 pages in length. Edwards included
those pages to support the statement that Jane Doe was abused at least 17 times. It actually
does not support that statement, but regardless, the excerpt is not in any way authenticated.
Attachments "3" through "22" suffer from the same defect. The Exhibits, with the exception of
"N: are no better.
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Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
Edwards' "facts" fall into the following categories which, on their face, are unrelated to
Epstein's abuse of process claim and Edwards' defenses: "sexual abuse of children by Epstein"
(911 1-18); Epstein's plea agreement with the Federal government (1119-30); Edwards' agreement
to represent ■., M., and Jane Doe and the Crime Victim Rights Act filed by ■. and..
(911 31-40); Epstein's entry of guilty pleas to sex offenses (11 41-44); lawsuits filed by other
attorneys against Epstein and settlements in those cases (191 48-52); invocation of the Fifth
Amendment by Epstein and alleged co-conspirators in depositions taken in the "Epstein Actions"
M., ■., and Jane Doe) and other similar lawsuits (111 54-58); "blocking" of discovery by
various witnesses (9191 59-66); Epstein's purported association with Jean Luc Brunel, who
allegedly ran a modeling agency and sexually assaulted underage models who "presumably
live(d) as underage prostitutes in condos owned by Epstein" (191 65; see also 62-67); Edwards'
rationalization as to why he noticed Bill Clinton, Alan Dershowitz, Donald Trump, David
Copperfield and Bill Richardson for deposition en 70-75); purported relevancy of pilot and
flight logs to show interstate airplane travel in support of Jane Doe's Federal Rico claims and
punitive damages (911 77-79); Epstein's interview with a New York newspaper reporter (9191
80-81); Epstein's alleged threats to witnesses (11 82-83); settlements in the Epstein Actions
84-5); and Edwards' purported non-involvement in the Ponzi scheme (1186-91).
This Court has ruled that Edwards is not entitled to discovery regarding Epstein's alleged
sexual misconduct because it is irrelevant. (See ). What allegedly transpired
between Edwards, M., and others simply does not disprove the allegations of abuse of
process or Edwards' defenses. Nevertheless, Edwards has made sexual misconduct the
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Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
centerpiece of his Statement of Undisputed Facts, filling the first 10 pages with graphic and
irrelevant details. It is readily apparent that Edwards' sole purpose in placing such scurrilous
"facts" and materials into the court file and the public domain is to vilify Epstein. There can be
no other reason for Edwards' baseless filing.
Moreover, the vast majority of the remaining "facts" are not remotely relevant to the
allegations that Edwards engaged in abuse of process by filing the Federal M. action, deposing
Epstein's airline pilots and brother without asking questions regarding the claims of Edwards'
clients, noticing prominent acquaintances of Epstein who had no knowledge of the claims,
issuing a subpoena to a doctor who never treated Epstein, seeking health-related documents
when Epstein's health was not at issue, and filing an unfounded motion to freeze Epstein's assets.
Nor are any of the remaining "facts" even remotely relevant to Edwards' summary judgment
arguments based upon the litigation privilege, the sword and shield doctrine, and the Ponzi
scheme. The following examples will vividly illustrate this point. Irrelevant to the point of
absurdity are extensive "facts" regarding the alleged sexual misconduct of purported
acquaintance Jean Luc Brunel and his visits to Epstein in jail (see 11 62-67); invocation of the
Fifth Amendment by alleged "co-conspirators" none of whom are named in the operative
Complaint or Edwards' summary judgment motion (see 11 54-58); alleged fabrication by third
parties (see 11 61-2); and Jane Doe's "escape() to Australia (see 151). None of these "facts" is
remotely relevant to the abuse of process allegations and Edwards' defenses. These are just a
few of the more egregious examples of immaterial "Facts" that vividly illustrate why the
Edwards' Statement of Undisputed Facts should be stricken.
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Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
Further undermining the validity of Edwards' Statement of Undisputed Facts is the fact
that Edwards only cites his Statement sporadically and generally in his summary judgment
motion (see pp. 9, 10 at n. 2, 13, 14 and 15), and does not reference any specific "facts" in his
summary judgment motion. The only conclusion to be drawn is that Edwards' "Statement of
Undisputed Facts" is a sham and should be stricken.
EDWARDS' "SUPPORTING PAPERS" VIOLATE FLA. R.
CIV. P. 1.510 AND SHOULD BE STRICKEN, AS SHOULD
ALL "FACTS" BASED THEREON
Edwards' "Supporting Papers" — with the exception of Exhibit N, Edwards' Affidavit —
violate Rule 1.510 because they are not properly authenticated and are based on inadmissible
hearsay. They must be stricken together with the "facts" based thereon.
a. No Authentication. None of the Supporting Papers, save two, is sworn or certified
in any manner whatsoever. None of the Supporting Papers is accompanied by an affidavit of a
records custodian or other individual attesting to its authenticity, completeness or correctness.
For example, Attachment "I" purports to be a 183-page deposition of Plaintiff in a case styled
v. Jeffrey Epstein then pending in this Court, but the copy of the transcript is not signed and
certified by the court reporter, or otherwise authenticated, and is therefore inadmissible.
Attachment "2" consists of an excerpt of 9-pages of the purported transcript of a deposition of a
Jane Doe which apparently in its entirety is more than 568 pages in length. Edwards included a
9-page unauthenticated excerpt to support the statement that Jane Doe was abused at least 17
times, but the excerpt does not support that statement. Attachments "3" through "22" suffer
from the same defect. The exhibits are no better.
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Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
The law is settled that unauthenticated documentary evidence may not be relied on or
considered in support of a motion for summary judgment. See, e.g., Hollywood Towers
Condominium Ass'n, Inc. v. Hampton, 993 So. 2d 174, 175-176 (Fla. 4th DCA 2008)
(unauthenticated photocopies of check, letter and bank statement attached to motion for
summary judgment could not be used to support motion); Eifitico, 693 So. 2d at 710 (trial court
could not consider unswom or uncertified insurance documents attached to motion for summary
judgment); Mack v. Commercial Industrial Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989)
(contractual exhibits which were unaccompanied by an affidavit could not be considered in
support of motion for summary judgment). In &fitico the court observed, 693 So. 2d at 710
(emphasis added) :
[lit is unquestionably clear that the documents attached to
Edwards' motion are not sworn to or certified in any manner
whatsoever, nor are they in proper admissible form. They are not
accompanied by any affidavit of a records custodian or other
proper person attesting to their authenticity or correctness. . . .
They were received without any foundation other than the
representations of Appellees counsel. In short, rule 1.510(e), by its
very language, excludes any document from the record on a
motion for summary judgment that is not one of the enumerated
documents or is not a certified attachment to a proper affidavit.
The documents in question in the case before us, standing by
themselves, are insufficient to satisfy the heavy burden Appellee
must meet in order to justify the granting of summary judgment in
its favor.
b. Inadmissible Hearsay. In addition, the Supporting Papers and "facts" based thereon
must be stricken because they contain inadmissible hearsay. First, the Supporting Papers were
not authenticated by anyone in an attempt to lay the required foundation for admissibility as
public or business records. See Gray v. State, 910 So. 2d 867, 869 (Fla. 1st DCA 2005)
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Epstein's Response in Opposition to Edwards' MSJ
(document on Department of Corrections letterhead was hearsay where foundation not laid for its
admission as a business record or a public record); Bifidco, 693 So. 2d at 710-711 (insurance
documents attached to motion for summary judgment were inadmissible under business records
or public records exceptions to hearsay rule where required predicate was not established);
Adams v. State, 521 So. 2d 337, 338 (Fla. 4th DCA 1988) (business records are inadmissible
without a proper foundation for their admission). See also Fridman v, City of N.Y., 183 F. Supp.
2d 642, 646 n.2 (S.D.N.Y. 2002) (newspaper articles disregarded as hearsay).
The following documents included in the Supporting Papers are being offered by
Edwards to prove the truth of the matters asserted therein and are rank, prejudicial hearsay: the
"Holy Grail" (Ex. F), a "journal" assertedly taken from Epstein's computer and cited by Edwards
inn 16-18; correspondence between the U.S. Attorney and Jay Leflcowitz, Esq. (Exs. C and D
and 9fq 6, 20, 25) and Lilly Ann Sanchez, Esq. (Ex. L andl 28); a book receipt (Ex. I and 1 22),
message pads (Ex. A. 1 24) and a property receipt (Ex. O and 1 34) ; correspondence between the
FBI and and (Ex. M and 11 29, 30); newspaper articles and photos and blogs (Exs. X,
Y, AA, DD, FF, LL, NN,9191 50, 52, 59, 61, 62, 68, 71); a jail visitor log (Ex. GG, 1 63); and
flight logs (Ex. MM, 1 72). Accordingly, the Supporting Papers must be stricken, as should the
"facts" based thereon.
Third, the Palm Beach Police Incident Report (Ex. A), cited widely by Edwards in
support of 113, 12, 13, 21, 23, 27, 82, constitutes double hearsay, and cannot be used to support
his summary judgment motion. See Burgess v. State, 831 So. 2d 137, 140 (Fla. 2002) ("The
information contained in police reports is ordinarily considered hearsay and inadmissible in an
17
EFTA00808042
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
adversary criminal proceeding."); Jenkins v. State, 803 So. 2d 783, 2001 Fla. App. LEXIS 16957
(Fla. 5th DCA 2001) ("Where basis for involuntary commitment came from admission of police
reports with unswom allegations of serious sexual misconduct, evidence was hearsay, and
perhaps multiple hearsay, and thus could not be the basis for commitment; trial court erred in
admitting the same as it amounted to violation of patient's right to confrontation."); Kashino v.
Morel!, 449 So. 2d 958, 959 (Fla. 4th DCA 1984) (police accident report inadmissible in civil
suit). Thus, Edwards' reliance on the Palm Beach Police Incident Report is egregious error. The
report and "facts" based thereon must be stricken.
Finally, inadmissible and improper triple hearsay forms the basis of the "facts" set forth
in ¶ 80, in which Edwards cites the affidavit of Michael Fisten (Ex. QQ), an investigator who
recounted what George Rush, a New York Daily News reporter, told Fisten what Epstein had
said in an interview with Rush.
EDWARDS' "FACTS" PERTAINING TO OTHER
PURPORTED ACTS OR WRONGS ARE NOT PROBATIVE
AND ARE HIGHLY PREJUDICIAL
Many, if not the majority, of Edwards' "facts" detail in graphic terms alleged misconduct
by Epstein wholly unrelated to the allegations in the instant litigation. Pursuant to Fla. R. Evid.
§90.404(1), evidence of other crimes, wrongs or acts is inadmissible when the evidence is
introduced solely to prove bad character, or that the person acted in conformity with his
character. See, e.g., Jacobs v. Westgate, 766 So. 2d 1175 (Fla. 3d DCA 2000) (error to admit
evidence that roommate bounced checks in action for negligent disposition of property because
such evidence was inadmissible to "disparage" plaintiffs character). Thus, Edwards' evidence
18
EFTA00808043
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
of other wrongs has been put into a public document solely to smear Epstein and poison the well.
However, §90.404(I), Fla. Stat., prohibits the admission of other wrongs evidence for purposes
of character assassination.
ALLEGATIONS DO NOT CONSTITUTE UNDISPUTED
FACTS
To the extent that Edwards' "facts" are based on allegations in various complaints, they
are improper and should be stricken. (See 11 4, 71, Ex. B). For example, Edwards cites the
Jane Doe 102 Complaint in support of the "facts" in 1 4 that "there is overwhelming proof that
the number of underage girls molested by Epstein through his scheme was in the hundreds."
Edwards' reliance on such allegations to proof of undisputed "facts" is egregious. It is well
settled that mere allegations do not constitute "facts" for purposes of summary judgment. See,
e.g., Metro. Dade County v. Wilkey, 414 So. 2d 269, 271 (FIa. 3d DCA. 1982) ("[P]leadings are
not admissible in evidence to prove or disprove a fact in issue.") (citing Hines v. Trager
Construction Co., 188 So.2d 826 (Fla. 1st DCA 1966) (the pleadings of a cause are merely
tentative outlines of the position the pleader takes before the case is fully developed on the facts,
and hence are inadmissible to prove facts alleged therein)).
PLEA NEGOTIATIONS AND RELATED PAPERS ARE
INADMISSIBLE
Edwards' "facts" and Supporting Papers regarding plea negotiations and a plea agreement
between Epstein and the U.S. Attorney's Office, including letters between the U.S. Attorney's
Office and Epstein's counsel, a prosecution memo and indictment, an investigation by the Palm
Beach Police Department, and notification of .. and.. (see 11 5, 20-30; Exs. A, C, H, I, K,
19
EFTA00808044
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
L, M) must be stricken for numerous reasons. First, none of the purported "facts" detailed in
5, 20-30 are even remotely relevant to the issues in suit. It is readily apparent that Edwards'
assertions that Epstein was successful in "attempt[ing] to avoid the filing of numerous federal
felony offenses" (1 5) and "Epstein's attorneys knew of Epstein's scheme to recruit minors for
sex..." (¶ 6) are extraneous and highly prejudicial, demonstrating the specious nature of
Edwards' Statement of Undisputed Facts.
Second, Edwards' filing of correspondence and documents between Epstein's counsel and
Federal prosecutors violates an Order entered in Jane Doe No. 2. v. Epstein, Case No.
08-80893-Marra/Johnson on January 5, 2011. (See D.E. 226) (Ex. A attached hereto).
Pursuant to that Order, Edwards is required to seek leave of court before filing or making public
the subject correspondence and documents. Edwards, however, did not seek leave of this Court
before making public thousands of pages of confidential documents subject to the Federal Order.
Third, evidence of a settlement or statements made during settlement negotiations are
inadmissible to prove liability under §90.410, Fla. Stat. See Richardson v. State, 706 So. 2d
1349, 1355-1356 (Fla. 1998) ("Rule 3.172(h) and Section 90.410, Florida Statutes (1991),
prohibit the admission of statements given during plea negotiations."); State v. Walters, 12 So.
3d 298, 303 (Fla. 3d DCA 2009) (error to admit e-mails exchanged during plea negotiations;
exclusion of offers to compromise is based on ground that the evidence is irrelevant and public
policy favors amicable settlements of disputes and the avoidance of litigation); Debiasio v. State,
789 So. 2d 1061, 2001 Fla. App. LEXIS 8039 (Fla. 4th DCA 2001) ( a letter from the defendant's
attorney to the State's attorney stating that defendant was willing to accept responsibility for
20
EFTA00808045
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
what he had done was an offer to plead guilty that was inadmissible evidence under Ha. Stat. §
90.410).
In the instant case, any and all evidence cited by Edwards regarding the plea negotiations
between Epstein's counsel and the U.S. Attorney's Office must be stricken for the reasons set
forth herein.
THE SWORD AND SHIELD DOCTRINE DOES NOT
SUPPORT SUMMARY JUDGMENT FOR EDWARDS
Edwards contends that Plaintiff must be denied any affirmative relief regardless of the
merits of his cause, because at his deposition taken in the instant case, Plaintiff refused to answer
certain questions, invoking his Fifth Amendment privilege. (Mot. at 19-20). Edwards also
argues that he is entitled to summary judgment because Plaintiff's assertion of the Fifth
Amendment raises adverse inferences which conclusively establish that Plaintiff's claims are
without merit. (Id. at 21-2). Edwards' arguments are wrong.
First, Edwards misapprehends the nature and application of the "sword and shield"
doctrine, which "embraces the rule `that a plaintiff may not seek affirmative relief in a civil
action and then invoke the Fifth Amendment to avoid giving discovery in matters pertinent to the
litigation.' DeLisi v. Bankers, Ins. Ca, 436 So. 2d 1099, 1100 (Fla. 4th DCA 1983) (quoting
City of St. Petersburg v. Haughton, 362 So. 2d 681, 685 (Fla. 2d DCA 1978) (emphasis added)).
See also Brancaccio v. Mediplex Mgmt. of Pon St. Lucie, Inc., 711 So. 2d 1206, 1208-1210 (Ha.
4th DCA 1998) (approving City of St. Petersburg and Village Inn Rest v. Aridi, 543 So. 2d
778,782 (Ha. 1st DCA 1989)), in which the First District agreed that "sanctions may be
necessary where a plaintiff in a civil action invokes the Fifth Amendment privilege against
21
EFTA00808046
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
revealing relevant information in pretrial discovery." (emphasis added). The Fourth District
explained in Brancaccio that the "Supreme Court has disapproved of procedures which require a
party to surrender one constitutional right in order to assert another..." 711 So. 2d, at 1210.
Thus, a "civil defendant [does not] have an absolute right to have the action dismissed any time a
plaintiff invokes his constitutional privilege."
Pursuant to the foregoing authorities, Plaintiff's claims may not be dismissed on
summary judgment pursuant to the "sword and shield" doctrine because the information Edwards
sought to elicit from Plaintiff at his deposition, and the answers Plaintiff declined to give in
response to questions about his alleged misconduct and criminal activity, would not provide any
information relevant to Plaintiff's claims or Edwards' defense of those claims. Plaintiff's
allegations are based on the belief that Edwards inflated purported claims against Plaintiff and
conducted discovery of high profile figures in the cases pending at the Rothstei
IN AND FOR PALM BEACH COUNTY, FLORIDA
CIVIL DIVISION AG
CASE NO. 502009CA040800XXXXMB
Judge David F. Crow
JEFFREY EPSTEIN,
Plaintiff/Counter-Defendant,
v.
SCOTT ROTHSTEIN, individually, and
BRADLEY J. EDWARDS, individually,
Defendants/Counter-Plaintiffs.
PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANT
EDWARDS' RENEWED MOTION FOR SUMMARY JUDGMENT
Plaintiff, Jeffrey Epstein ("Plaintiff" or "Epstein"), hereby files the following Response in
Opposition to Defendant Bradley J. Edwards' ("Edwards") Renewed Motion for Summary
Judgment ("Motion") and states as follows:'
SUMMARY OF ARGUMENT
Edwards' Renewed Motion for Summary Judgment should be denied for numerous
reasons. First, Epstein has not had an opportunity to conduct discovery essential to refute
Edwards' arguments. Edwards' insufficient privilege log has tied relevant discovery in knots.
Second, Edwards filed a "Statement of Undisputed Facts" with exhibits — all of which violate
Rule 1.510 and should be stricken. The "undisputed facts" are impertinent and entirely
irrelevant, as are the unswom and unauthenticated exhibits on which Edwards improperly relies
Nothing factually new has been submitted by Edwards. The Statement of Undisputed
Facts is identical to the one used for Edwards' first Motion for Summary Judgment.
EFTA00808026
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
to obtain summary judgment. Third, Edwards has not demonstrated the absence of material
issues of fact. His alleged participation in and/or knowledge of the Rothstein Ponzi scheme and
the validity of, and motivation in conducting, the discovery at issue in the underlying Epstein
actions are matters of considerable debate. Finally, as a matter of law, Edwards cannot secure
summary judgment on the basis of the sword and shield doctrine or the litigation privilege.
STATEMENT OF THE CASE
A. Delay in Discovery Pending Resolution of Pleadings
On December 7, 2009, Jeffrey Epstein filed his Complaint against Bradley J. Edwards
and Scott Rothstein, seeking damages based on a scheme involving the marketing of investments
in lawsuits brought against the Plaintiff. Edwards filed his Answer and Counterclaim for Abuse
of Process on December 21, 2009.
On or about August 24, 2011, Epstein filed a narrowly-drawn Corrected Second
Amended Complaint, consisting of a single count against Edwards for abuse of process, and a
single count against Rothstein for conspiracy to commit abuse of process. Epstein alleged that
Edwards committed abuse of process by filing the Federal ■. action, deposing Epstein's airline
pilots and brother without asking any questions regarding the claims of Edwards' clients,
noticing for deposition famous acquaintances of Epstein who had no knowledge of the claims,
issuing a subpoena to a doctor who never treated Epstein, seeking health-related documents
when Epstein's health was not at issue, and filing an unfounded motion to freeze Epstein's assets.
From April 11, 2011 to November 17, 2011, the Court had stayed discovery until the Plaintiff
had a Complaint which survived a Motion to Dismiss.
2
EFTA00808027
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
B. RR:', Bankruptcy - Efforts to Get Records
On May 18, 2010, Judge Raymond Ray, Bankruptcy Judge for the United States
Bankruptcy Court for the Southern District of Florida ("Bankruptcy Court") entered an order that
established the process for anyone wishing to obtain discovery from the Trustee. The operation
of the Order was not limited to parties in the bankruptcy case. Further, the Bankruptcy Court
determined it had jurisdiction and retained jurisdiction with respect to all matters arising from or
related to the implementation or the interpretation of its Order without any limitation on the form
(A:1).
On July 14, 2010, Plaintiff filed a Motion to Compel Production of Documents from the
Trustee pursuant to the document production protocol established by the aforesaid Order (A: 2).
On August 4, 2010, the Bankruptcy Court conducted a hearing on Plaintiffs Motion to
Compel and entered an Order on August 13, 2010 appointing former Broward County Circuit
Court Judge Robert Carney as Special Master to review the documents responsive to the
Plaintiff's subpoena served on the Trustee, to determine the applicability of any privileges
asserted by ■., Bradley Edwards, or other former clients of Farmer Jaffee, where Edwards
presently works, and to prepare a privilege log. The Plaintiff, without objection, agreed and
was ordered to pay the legal fees and costs incurred by the Special Master in the preparation of
this log (A :5). Prior to the hearing, two motions in opposition were filed by Farmer Jaffee (A:
3 and 4).
Subsequently, on October 13, 2010, the Special Master filed a motion seeking
clarification of the Order appointing him (A: 7). Farmer Jaffee filed another motion in
3
EFTA00808028
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
opposition (A: 8 and 9). A hearing took place and an Amended Order was entered, which
allowed Farmer Jaffee to review and assist in the preparation of the privilege log (A: 10).
Farmer Jaffe received a portion of the electronically stored data on October 17, 2010 and was
required to prepare a detailed privilege log within thirty (30) days of receipt of the compact disk,
i.e., on or before November 15, 2010, at its cost (A: 10).
On November 2, 2010, ■. and Bradley Edwards filed a Motion for Relief from the
Amended Order and sought to have the Plaintiff pay for the production of all documents and fees
associated with the privilege log, which previously had been ordered by the Court for Farmer
Jaffe to pay. In addition, Farmer Jaffe and Edwards asked for more time (A: 12). As a result of
the Motion, an Agreed Order was entered granting additional time, and the Plaintiff agreed to
pay the cost of making physical copies of the documents on the compact disks for the purpose of
making it more convenient for Fanner Jaffee to prepare the privilege log (A: 13).
Even though Farmer Jaffee had received one compact disk on October 19, 2010 and
received another compact disk on or about November 15, 2010 from the Trustee, on December
16, 2010, Fanner Jaffee filed an emergency motion, after agreeing to the Order granting
additional time, not only for an extension of time but also for a stay in the preparation of the
privilege log pending its Motion for Summary Judgment to be heard by this Court (A: 16).
Edwards filed a similar motion with this Court which is presently set for hearing on January 27,
2011.
On December 21, 2010, the Bankruptcy Court conducted a hearing and entered an Order
allowing through January 31, 2011 for the privilege log to be prepared (A: 17).
4
EFTA00808029
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
[ADD PRIVILEGE HISTORY - PENDING MOTION.]
C. Present Renewed Motion for Summary Judgment
On November 4, 2011, Edwards filed a Renewed Motion for Final Summary Judgment
on the ground that Epstein could not seek affirmative relief because he had invoked the Fifth
Amendment at his deposition; Edwards' conduct was protected by a "litigation privilege;" and
Edwards was not involved in the Ponzi scheme (D.E. 390). On or about November 7, 2011,
Edwards filed a "Statement of Undisputed Facts" dated November 2, 2010 (D.E. 393), which is
exactly the same "Statement of Undisputed Facts" that he filed in September 2010 for his initial
Motion for Summary Judgment.
Nothing has changed in this recitation of "Facts," even though depositions of investors
have occurred which present disputed facts under oath based on personal knowledge, which is
just about all that Edwards presents here.
ARGUMENT
LEGAL FRAMEWORK FOR SUMMARY JUDGMENT MOTIONS
In order to obtain summary judgment against Epstein, Edwards must show: (1) the
nonexistence of a material factual issue, and (2) entitlement to judgment as a matter of law. Fla.
R. Civ. P. 1.510(c), (2006). In Florida, the party moving for summary judgment must
conclusively demonstrate the nonexistence of an issue of material fact, and the court must draw
every possible inference in favor of the party against whom summary judgment is sought.
Summary judgments should be cautiously granted, and the trial court should not enter summary
judgment unless the facts are so crystallized that nothing remains but questions of law. If the
5
EFTA00808030
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
evidence will permit different reasonable inferences, it should be submitted to the jury as a
question of fact, and summary judgment should not be granted. McCraney v. Barberi, 677 So.
2d 355, 357 (Ha. 1s' DCA 1996); Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Ha. 4'h DCA
1996). Finally, summary judgments are not favored. O'Connor v. Marston, 717 So. 2d 82 (Ha.
5th DCA, 1998).
It is also necessary for the movant to authenticate the undisputed facts upon which its
claim for summary judgment is based. Most of the facts and assertions contained throughout
Edwards' motion are unauthenticated and cannot form the basis for any summary judgment. Ha.
R. Civ. P. 1.540; Bifidco v. State Farm Mutual Automobile Insurance Co., 693 So.2d 707 (Fla.
4th DCA 1997).
Pursuant to Fla. R. Civ. P. I.510(c), a motion for summary judgment must specifically
identify "materials as would be admissible in evidence...on which the movant relies." Statements
in an affidavit that are irrelevant to the claims in suit cannot be considered on a motion for
summary judgment. See, e.g., Food Fair Stores, Inc. v. Dwell, 131 So 2d 730 (Fla. 1961).
An affidavit based on hearsay does not provide a basis for summary judgment. See, e.g.,
Castro v. Brazeau, 873 So. 2d 516 (Fla. 4th DCA 2004). By the same token, conclusory
allegations in an affidavit do not raise issues of facts and should be stricken. See, e.g., Reinke v.
O'Connell, 790 F. 2d 850, 851-52 (11th Cir. 1986).
Finally, summary judgment should not be granted until all discovery has been completed.
See, e.g., Sica v. Sam Caliendo Design, Inc., 623 So.2d 859 (Fla. 4th DCA 1993).
6
EFTA00808031
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
SUMMARY JUDGMENT MAY NOT BE GRANTED FOR
EDWARDS BECAUSE CRITICAL DISCOVERY HAS BEEN
STALLED
1. Documents. Plaintiff has been attempting since last spring to obtain discovery of
communications, primarily in the form of emails originated and received at RRA with the intent
to depose appropriate witnesses after having had an opportunity to review the content of the
documents. To this end, Plaintiff served a subpoena on the bankruptcy Trustee appointed to
stand in the place of the now-defunct firm's management since before this case was filed. The
subpoena resulted in proceedings before Honorable Judge Ray of the U.S. Bankruptcy Court,
who appointed a Special Master. In response to several Orders entered by Judge Ray, Edwards
filed a I59-page privilege log claiming that over 200 documents were privileged. Epstein has
moved to compel production of documents by Edwards on the ground that the privilege log was
woefully insufficient. A hearing on Epstein's Motion to Compel Production of Documents by
Defendant Bradley Edwards and for Sanctions is pending.
2. Rothstein Deposition. For the first time, on July 1, 2011, the District Court
authorized Rothstein's deposition to begin on December 12, 2011, granting a stay to the
government. Epstein sought leave of the Bankruptcy Court to take the deposition of Scott
Rothstein on December 1, 2011. At that time, Judge Ray denied the Motion without prejudice,
because there was no time in the schedule to depose Mr. Rothstein.
The deposition of Scott Rothstein was taken in the bankruptcy proceeding of Rothstein,
Rosenfeldt and Adler ("RRA"), but not completed, from December 12, 2011 through December
7
EFTA00808032
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
22, 2011, by Order of Judge Cohn, the Federal judge presiding over Rothstein's criminal case.
Only a limited number of parties had an opportunity to question Rothstein during that time.
On January I I, 2012, Epstein filed a Renewed Motion to Depose Scott Rothstein. On
February 1, 2012, Epstein's Renewed Motion was heard by Judge Ray, who denied it without
prejudice to seek leave from Judge Cohn to be allowed to participate in the second deposition.
Epstein then filed a Motion for a Writ of Habeas Corpus Ad Testificandum to Depose Scott
Rothstein, which Motion was granted by Judge Cohn on February 13, 2012. Judge Cohn
ordered that the second deposition take place from June 4, 2012 through June 15, 2012. Up
until now, Epstein has not had an opportunity to depose Rothstein; and as the record
demonstrates, he has proceeded with all due diligence to take Rothstein's deposition.
Rothstein's testimony is critical in the instant case. He is the central figure with
personal knowledge of material facts relating to Epstein's claims against Rothstein and Edwards.
Some of the relevant documents that Epstein has obtained show, among other things, that
Rothstein was involved in supervising and/or managing the Epstein cases; the Rothstein firm
developed a strategy to go after those persons closest to Epstein; RRA files of the Epstein cases
were shown by Rothstein to the Razorback investors; the purpose of the Ponzi scheme was to
personally enrich Rothstein and other co-conspirators and to supplement the income and sustain
the daily operation of RRA; to achieve this purpose Rothstein and other co-conspirators utilized
the offices of RRA and the offices of other co-conspirators to convince potential investors of the
legitimacy and success of the law firm, which enhanced the credibility of the purported
investment opportunity; RRA relied upon the Ponzi scheme to supplement and support the
8
EFTA00808033
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
operation and activities of RRA, to expand RRA by the hiring of additional attorneys and support
staff, to fund salaries and bonuses, and to acquire larger and more elaborate office space and
equipment in order to enrich the personal wealth of the persons employed by and associated with
RRA.
Thus, Rothstein's testimony is critical to the issues raised in Edwards' summary judgment
motion. It is essential that Epstein be able to ask Rothstein to be able to authenticate documents
he authored and to question him about his actions in marketing the Epstein litigation to the
Razorback investors. Rule 1.510(f) provides that a court may refuse the application for
summary judgment or order a continuance for depositions or discovery to be taken. Pursuant to
Rule 1.510(f), summary judgment is premature because extensive discovery is pending. See,
e.g., Sica, 623 So. 2d at 860 (reversing grant of summary judgment where properly-noticed
deposition had not as yet been taken); Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987)
("Facts upon which the court based its decision were not fully developed because discovery was
in progress, and depositions were pending. Summary judgment was therefore premature.").
Epstein submits that this case is not the normal run-of-the-mill, slip and fall tort case or
breach of contract case. A former law firm with 77 lawyers collapses when its leader
perpetrates a giant, gigantic fraud brought about by use of the law firm. The principal member
and person most knowledgeable of the events has pled guilty and has been sentenced to 50 years
in prison. If one were to go on the United States Bureau of Prisons' website, he or she would
not find Scott Rothstein listed as a prisoner incarcerated there. He remains under high security
protection. Various efforts to depose him have only recently been successful, with Judge
9
EFTA00808034
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
Cohn's ruling, giving the United States government up until December 1, 2011 to complete its
investigation for any other indictments arising out of this law firm fraud.
The law firm itself is in Chapter 11 Bankruptcy. The Trustee has commenced
approximately 127 adversary proceedings in order to reclaim law firm funds dissipated for the
purpose of this Ponzi scheme. It is not a simple process of subpoenaing the documents that
related to this firm. First, they are under the control of the U.S. Bankruptcy Court, not this
Court. Second, and more importantly, all of the documents were created by a law firm and are
subject to numerous privilege challenges. Even the government has had ( order ) two teams of
lawyers reviewing in excess of six figures of documents for privilege issues for their indictment.
Certainly that takes precedence over a civil action. And, as Judge Cohn noted, Epstein was
lucky to be able to depose Rothstein. Under normal circumstances ( insert cite ), a writ of
habeas corpus from a State Court to the Bureau of Prisons is unenforceable and is subject
completely to the discretion of the Bureau of Prison Officials ( CVR cite ).
It is simply not realistic, believable, or fair to allow Mr. Edwards to oppose every effort
by Epstein to get documents or to prepare the case, while t the same time seeking to fast track
two — not one — but two summary judgment motions on a matter that is clearly not concluded or
ready or ripe for summary judgment hearing.
As previously argued, Epstein respectfully renews its Motion to either deny Edwards'
Motion as not ripe or postpone it until further discovery has been able to take place.
I0
EFTA00808035
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
EDWARDS' SUMMARY JUDGMENT MOTION MUST BE
DENIED BECAUSE HIS "STATEMENT OF UNDISPUTED
FACTS" IS SCURRILOUS AND IRRELEVANT
On November 3, 2011, Edwards served a Renewed Motion for Summary Judgment
together with a thirty-seven (37) page "Statement of Undisputed Facts," consisting of 120
separate paragraphs, most of which are either not material at all or, where arguably material, are
nonetheless disputed. At best only paragraphs 86 through 91 bear on the subject of this lawsuit.'-
In support of these 120+ allegedly "undisputed" facts, Edwards served an eight-inch tall
stack of "47 exhibits" and 22 "attachments" numbered respectively from "A" to "UU" and "1" to
"22". Collectively, we refer to these materials as the "Supporting Papers." Among these
Supporting Papers are 22 transcripts of depositions or excerpts of depositions — the
"Attachments" — most of which were taken prior to the filing of this action in 2009 and before.
The other "Exhibits" are a compendium of unswoni letters, pleadings and other court filings,
hearing transcripts, an unauthenticated copy of what purports to be a plea agreement between
Scott Rothstein and the government,; unsigned drafts, unsigned answers to interrogatories from
2 Nevertheless, Edwards fills 35 pages with facts that are not material to any issue in this
case for the apparent purpose of prejudicing Plaintiff in this Court with a gratuitous and graphic
recount of alleged conduct not in issue in this case, such as Plaintiffs alleged sexual exploits
with clients of Edwards. There can be no other reason, since the Plaintiff has not placed those
matters in issue. Edwards persists in attempting to use sex to shift the focus from his own
conduct.
3 See Exhibit "SS." The statement of facts incorporated into the plea agreement refers
throughout to Rothstein and "other co-conspirators" without naming those others. It intimates
that others working at RRA knew of the Ponzi scheme and conspired to advance the criminal
enterprise. Plaintiff believes Edwards is such a person, notwithstanding Edwards' production
of an unswom form letter from a Federal victim witness specialist identifying him as a possible
II
EFTA00808036
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
another case, New York Post and other media publications, items (such as phone messages)
allegedly garnered from Plaintiff and others pursuant to search warrants in criminal
investigations of Plaintiff, a purported copy of a visitor log from the Palm Beach County
Sheriffs Office, flight logs, and other documents the materiality of which is not facially
apparent.'
Edwards' Statement of Material Facts is a nasty mass of entirely irrelevant statements
based on hearsay and otherwise inadmissible materials that do not conform to the Rules of Civil
Procedure. It is a bad faith, if not reprehensible, attempt to smear and embarrass Epstein and
others under the guise of compliance with Rule 1.150(c). Although Edwards relies on the
following portion of Rule 1.510(c) to justify his submission, such reliance is misplaced because
Edwards is the movant, not the adverse party: " The adverse party shall . . . identify any
summary judgment evidence on which the adverse party relies . . ." No portion of Rule 1.150
authorizes the filing of hundreds of immaterial and impertinent "facts" in support of summary
judgment, particularly where the motion itself does not depend upon proof of such "facts."
victim of Rothstein (Exhibit "TT"), but has not yet been provided the documentary evidence he
has been seeking to use against Edwards.
4 For example, Attachment "I" purports to be a 183-page deposition of Plaintiff in a case
styled M. v. Jeffrey Epstein then pending in this Court, but the copy of the transcript is not
signed and certified by the court reporter or otherwise authenticated and is therefore inadmissible.
Attachment "2" consists of an excerpt of 9 pages of the purported transcript of a deposition of a
Jane Doe which apparently in its entirety is more than 568 pages in length. Edwards included
those pages to support the statement that Jane Doe was abused at least 17 times. It actually
does not support that statement, but regardless, the excerpt is not in any way authenticated.
Attachments "3" through "22" suffer from the same defect. The Exhibits, with the exception of
"N: are no better.
12
EFTA00808037
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
Edwards' "facts" fall into the following categories which, on their face, are unrelated to
Epstein's abuse of process claim and Edwards' defenses: "sexual abuse of children by Epstein"
(911 1-18); Epstein's plea agreement with the Federal government (1119-30); Edwards' agreement
to represent ■., M., and Jane Doe and the Crime Victim Rights Act filed by ■. and..
(911 31-40); Epstein's entry of guilty pleas to sex offenses (11 41-44); lawsuits filed by other
attorneys against Epstein and settlements in those cases (191 48-52); invocation of the Fifth
Amendment by Epstein and alleged co-conspirators in depositions taken in the "Epstein Actions"
M., ■., and Jane Doe) and other similar lawsuits (111 54-58); "blocking" of discovery by
various witnesses (9191 59-66); Epstein's purported association with Jean Luc Brunel, who
allegedly ran a modeling agency and sexually assaulted underage models who "presumably
live(d) as underage prostitutes in condos owned by Epstein" (191 65; see also 62-67); Edwards'
rationalization as to why he noticed Bill Clinton, Alan Dershowitz, Donald Trump, David
Copperfield and Bill Richardson for deposition en 70-75); purported relevancy of pilot and
flight logs to show interstate airplane travel in support of Jane Doe's Federal Rico claims and
punitive damages (911 77-79); Epstein's interview with a New York newspaper reporter (9191
80-81); Epstein's alleged threats to witnesses (11 82-83); settlements in the Epstein Actions
84-5); and Edwards' purported non-involvement in the Ponzi scheme (1186-91).
This Court has ruled that Edwards is not entitled to discovery regarding Epstein's alleged
sexual misconduct because it is irrelevant. (See ). What allegedly transpired
between Edwards, M., and others simply does not disprove the allegations of abuse of
process or Edwards' defenses. Nevertheless, Edwards has made sexual misconduct the
13
EFTA00808038
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
centerpiece of his Statement of Undisputed Facts, filling the first 10 pages with graphic and
irrelevant details. It is readily apparent that Edwards' sole purpose in placing such scurrilous
"facts" and materials into the court file and the public domain is to vilify Epstein. There can be
no other reason for Edwards' baseless filing.
Moreover, the vast majority of the remaining "facts" are not remotely relevant to the
allegations that Edwards engaged in abuse of process by filing the Federal M. action, deposing
Epstein's airline pilots and brother without asking questions regarding the claims of Edwards'
clients, noticing prominent acquaintances of Epstein who had no knowledge of the claims,
issuing a subpoena to a doctor who never treated Epstein, seeking health-related documents
when Epstein's health was not at issue, and filing an unfounded motion to freeze Epstein's assets.
Nor are any of the remaining "facts" even remotely relevant to Edwards' summary judgment
arguments based upon the litigation privilege, the sword and shield doctrine, and the Ponzi
scheme. The following examples will vividly illustrate this point. Irrelevant to the point of
absurdity are extensive "facts" regarding the alleged sexual misconduct of purported
acquaintance Jean Luc Brunel and his visits to Epstein in jail (see 11 62-67); invocation of the
Fifth Amendment by alleged "co-conspirators" none of whom are named in the operative
Complaint or Edwards' summary judgment motion (see 11 54-58); alleged fabrication by third
parties (see 11 61-2); and Jane Doe's "escape() to Australia (see 151). None of these "facts" is
remotely relevant to the abuse of process allegations and Edwards' defenses. These are just a
few of the more egregious examples of immaterial "Facts" that vividly illustrate why the
Edwards' Statement of Undisputed Facts should be stricken.
14
EFTA00808039
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
Further undermining the validity of Edwards' Statement of Undisputed Facts is the fact
that Edwards only cites his Statement sporadically and generally in his summary judgment
motion (see pp. 9, 10 at n. 2, 13, 14 and 15), and does not reference any specific "facts" in his
summary judgment motion. The only conclusion to be drawn is that Edwards' "Statement of
Undisputed Facts" is a sham and should be stricken.
EDWARDS' "SUPPORTING PAPERS" VIOLATE FLA. R.
CIV. P. 1.510 AND SHOULD BE STRICKEN, AS SHOULD
ALL "FACTS" BASED THEREON
Edwards' "Supporting Papers" — with the exception of Exhibit N, Edwards' Affidavit —
violate Rule 1.510 because they are not properly authenticated and are based on inadmissible
hearsay. They must be stricken together with the "facts" based thereon.
a. No Authentication. None of the Supporting Papers, save two, is sworn or certified
in any manner whatsoever. None of the Supporting Papers is accompanied by an affidavit of a
records custodian or other individual attesting to its authenticity, completeness or correctness.
For example, Attachment "I" purports to be a 183-page deposition of Plaintiff in a case styled
v. Jeffrey Epstein then pending in this Court, but the copy of the transcript is not signed and
certified by the court reporter, or otherwise authenticated, and is therefore inadmissible.
Attachment "2" consists of an excerpt of 9-pages of the purported transcript of a deposition of a
Jane Doe which apparently in its entirety is more than 568 pages in length. Edwards included a
9-page unauthenticated excerpt to support the statement that Jane Doe was abused at least 17
times, but the excerpt does not support that statement. Attachments "3" through "22" suffer
from the same defect. The exhibits are no better.
15
EFTA00808040
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
The law is settled that unauthenticated documentary evidence may not be relied on or
considered in support of a motion for summary judgment. See, e.g., Hollywood Towers
Condominium Ass'n, Inc. v. Hampton, 993 So. 2d 174, 175-176 (Fla. 4th DCA 2008)
(unauthenticated photocopies of check, letter and bank statement attached to motion for
summary judgment could not be used to support motion); Eifitico, 693 So. 2d at 710 (trial court
could not consider unswom or uncertified insurance documents attached to motion for summary
judgment); Mack v. Commercial Industrial Park, Inc., 541 So. 2d 800 (Fla. 4th DCA 1989)
(contractual exhibits which were unaccompanied by an affidavit could not be considered in
support of motion for summary judgment). In &fitico the court observed, 693 So. 2d at 710
(emphasis added) :
[lit is unquestionably clear that the documents attached to
Edwards' motion are not sworn to or certified in any manner
whatsoever, nor are they in proper admissible form. They are not
accompanied by any affidavit of a records custodian or other
proper person attesting to their authenticity or correctness. . . .
They were received without any foundation other than the
representations of Appellees counsel. In short, rule 1.510(e), by its
very language, excludes any document from the record on a
motion for summary judgment that is not one of the enumerated
documents or is not a certified attachment to a proper affidavit.
The documents in question in the case before us, standing by
themselves, are insufficient to satisfy the heavy burden Appellee
must meet in order to justify the granting of summary judgment in
its favor.
b. Inadmissible Hearsay. In addition, the Supporting Papers and "facts" based thereon
must be stricken because they contain inadmissible hearsay. First, the Supporting Papers were
not authenticated by anyone in an attempt to lay the required foundation for admissibility as
public or business records. See Gray v. State, 910 So. 2d 867, 869 (Fla. 1st DCA 2005)
16
EFTA00808041
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
(document on Department of Corrections letterhead was hearsay where foundation not laid for its
admission as a business record or a public record); Bifidco, 693 So. 2d at 710-711 (insurance
documents attached to motion for summary judgment were inadmissible under business records
or public records exceptions to hearsay rule where required predicate was not established);
Adams v. State, 521 So. 2d 337, 338 (Fla. 4th DCA 1988) (business records are inadmissible
without a proper foundation for their admission). See also Fridman v, City of N.Y., 183 F. Supp.
2d 642, 646 n.2 (S.D.N.Y. 2002) (newspaper articles disregarded as hearsay).
The following documents included in the Supporting Papers are being offered by
Edwards to prove the truth of the matters asserted therein and are rank, prejudicial hearsay: the
"Holy Grail" (Ex. F), a "journal" assertedly taken from Epstein's computer and cited by Edwards
inn 16-18; correspondence between the U.S. Attorney and Jay Leflcowitz, Esq. (Exs. C and D
and 9fq 6, 20, 25) and Lilly Ann Sanchez, Esq. (Ex. L andl 28); a book receipt (Ex. I and 1 22),
message pads (Ex. A. 1 24) and a property receipt (Ex. O and 1 34) ; correspondence between the
FBI and and (Ex. M and 11 29, 30); newspaper articles and photos and blogs (Exs. X,
Y, AA, DD, FF, LL, NN,9191 50, 52, 59, 61, 62, 68, 71); a jail visitor log (Ex. GG, 1 63); and
flight logs (Ex. MM, 1 72). Accordingly, the Supporting Papers must be stricken, as should the
"facts" based thereon.
Third, the Palm Beach Police Incident Report (Ex. A), cited widely by Edwards in
support of 113, 12, 13, 21, 23, 27, 82, constitutes double hearsay, and cannot be used to support
his summary judgment motion. See Burgess v. State, 831 So. 2d 137, 140 (Fla. 2002) ("The
information contained in police reports is ordinarily considered hearsay and inadmissible in an
17
EFTA00808042
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
adversary criminal proceeding."); Jenkins v. State, 803 So. 2d 783, 2001 Fla. App. LEXIS 16957
(Fla. 5th DCA 2001) ("Where basis for involuntary commitment came from admission of police
reports with unswom allegations of serious sexual misconduct, evidence was hearsay, and
perhaps multiple hearsay, and thus could not be the basis for commitment; trial court erred in
admitting the same as it amounted to violation of patient's right to confrontation."); Kashino v.
Morel!, 449 So. 2d 958, 959 (Fla. 4th DCA 1984) (police accident report inadmissible in civil
suit). Thus, Edwards' reliance on the Palm Beach Police Incident Report is egregious error. The
report and "facts" based thereon must be stricken.
Finally, inadmissible and improper triple hearsay forms the basis of the "facts" set forth
in ¶ 80, in which Edwards cites the affidavit of Michael Fisten (Ex. QQ), an investigator who
recounted what George Rush, a New York Daily News reporter, told Fisten what Epstein had
said in an interview with Rush.
EDWARDS' "FACTS" PERTAINING TO OTHER
PURPORTED ACTS OR WRONGS ARE NOT PROBATIVE
AND ARE HIGHLY PREJUDICIAL
Many, if not the majority, of Edwards' "facts" detail in graphic terms alleged misconduct
by Epstein wholly unrelated to the allegations in the instant litigation. Pursuant to Fla. R. Evid.
§90.404(1), evidence of other crimes, wrongs or acts is inadmissible when the evidence is
introduced solely to prove bad character, or that the person acted in conformity with his
character. See, e.g., Jacobs v. Westgate, 766 So. 2d 1175 (Fla. 3d DCA 2000) (error to admit
evidence that roommate bounced checks in action for negligent disposition of property because
such evidence was inadmissible to "disparage" plaintiffs character). Thus, Edwards' evidence
18
EFTA00808043
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
of other wrongs has been put into a public document solely to smear Epstein and poison the well.
However, §90.404(I), Fla. Stat., prohibits the admission of other wrongs evidence for purposes
of character assassination.
ALLEGATIONS DO NOT CONSTITUTE UNDISPUTED
FACTS
To the extent that Edwards' "facts" are based on allegations in various complaints, they
are improper and should be stricken. (See 11 4, 71, Ex. B). For example, Edwards cites the
Jane Doe 102 Complaint in support of the "facts" in 1 4 that "there is overwhelming proof that
the number of underage girls molested by Epstein through his scheme was in the hundreds."
Edwards' reliance on such allegations to proof of undisputed "facts" is egregious. It is well
settled that mere allegations do not constitute "facts" for purposes of summary judgment. See,
e.g., Metro. Dade County v. Wilkey, 414 So. 2d 269, 271 (FIa. 3d DCA. 1982) ("[P]leadings are
not admissible in evidence to prove or disprove a fact in issue.") (citing Hines v. Trager
Construction Co., 188 So.2d 826 (Fla. 1st DCA 1966) (the pleadings of a cause are merely
tentative outlines of the position the pleader takes before the case is fully developed on the facts,
and hence are inadmissible to prove facts alleged therein)).
PLEA NEGOTIATIONS AND RELATED PAPERS ARE
INADMISSIBLE
Edwards' "facts" and Supporting Papers regarding plea negotiations and a plea agreement
between Epstein and the U.S. Attorney's Office, including letters between the U.S. Attorney's
Office and Epstein's counsel, a prosecution memo and indictment, an investigation by the Palm
Beach Police Department, and notification of .. and.. (see 11 5, 20-30; Exs. A, C, H, I, K,
19
EFTA00808044
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
L, M) must be stricken for numerous reasons. First, none of the purported "facts" detailed in
5, 20-30 are even remotely relevant to the issues in suit. It is readily apparent that Edwards'
assertions that Epstein was successful in "attempt[ing] to avoid the filing of numerous federal
felony offenses" (1 5) and "Epstein's attorneys knew of Epstein's scheme to recruit minors for
sex..." (¶ 6) are extraneous and highly prejudicial, demonstrating the specious nature of
Edwards' Statement of Undisputed Facts.
Second, Edwards' filing of correspondence and documents between Epstein's counsel and
Federal prosecutors violates an Order entered in Jane Doe No. 2. v. Epstein, Case No.
08-80893-Marra/Johnson on January 5, 2011. (See D.E. 226) (Ex. A attached hereto).
Pursuant to that Order, Edwards is required to seek leave of court before filing or making public
the subject correspondence and documents. Edwards, however, did not seek leave of this Court
before making public thousands of pages of confidential documents subject to the Federal Order.
Third, evidence of a settlement or statements made during settlement negotiations are
inadmissible to prove liability under §90.410, Fla. Stat. See Richardson v. State, 706 So. 2d
1349, 1355-1356 (Fla. 1998) ("Rule 3.172(h) and Section 90.410, Florida Statutes (1991),
prohibit the admission of statements given during plea negotiations."); State v. Walters, 12 So.
3d 298, 303 (Fla. 3d DCA 2009) (error to admit e-mails exchanged during plea negotiations;
exclusion of offers to compromise is based on ground that the evidence is irrelevant and public
policy favors amicable settlements of disputes and the avoidance of litigation); Debiasio v. State,
789 So. 2d 1061, 2001 Fla. App. LEXIS 8039 (Fla. 4th DCA 2001) ( a letter from the defendant's
attorney to the State's attorney stating that defendant was willing to accept responsibility for
20
EFTA00808045
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
what he had done was an offer to plead guilty that was inadmissible evidence under Ha. Stat. §
90.410).
In the instant case, any and all evidence cited by Edwards regarding the plea negotiations
between Epstein's counsel and the U.S. Attorney's Office must be stricken for the reasons set
forth herein.
THE SWORD AND SHIELD DOCTRINE DOES NOT
SUPPORT SUMMARY JUDGMENT FOR EDWARDS
Edwards contends that Plaintiff must be denied any affirmative relief regardless of the
merits of his cause, because at his deposition taken in the instant case, Plaintiff refused to answer
certain questions, invoking his Fifth Amendment privilege. (Mot. at 19-20). Edwards also
argues that he is entitled to summary judgment because Plaintiff's assertion of the Fifth
Amendment raises adverse inferences which conclusively establish that Plaintiff's claims are
without merit. (Id. at 21-2). Edwards' arguments are wrong.
First, Edwards misapprehends the nature and application of the "sword and shield"
doctrine, which "embraces the rule `that a plaintiff may not seek affirmative relief in a civil
action and then invoke the Fifth Amendment to avoid giving discovery in matters pertinent to the
litigation.' DeLisi v. Bankers, Ins. Ca, 436 So. 2d 1099, 1100 (Fla. 4th DCA 1983) (quoting
City of St. Petersburg v. Haughton, 362 So. 2d 681, 685 (Fla. 2d DCA 1978) (emphasis added)).
See also Brancaccio v. Mediplex Mgmt. of Pon St. Lucie, Inc., 711 So. 2d 1206, 1208-1210 (Ha.
4th DCA 1998) (approving City of St. Petersburg and Village Inn Rest v. Aridi, 543 So. 2d
778,782 (Ha. 1st DCA 1989)), in which the First District agreed that "sanctions may be
necessary where a plaintiff in a civil action invokes the Fifth Amendment privilege against
21
EFTA00808046
Epstein v. Rothstein and Edwards
Case No. 502009CA040800XXXXMB/Div. AG
Epstein's Response in Opposition to Edwards' MSJ
revealing relevant information in pretrial discovery." (emphasis added). The Fourth District
explained in Brancaccio that the "Supreme Court has disapproved of procedures which require a
party to surrender one constitutional right in order to assert another..." 711 So. 2d, at 1210.
Thus, a "civil defendant [does not] have an absolute right to have the action dismissed any time a
plaintiff invokes his constitutional privilege."
Pursuant to the foregoing authorities, Plaintiff's claims may not be dismissed on
summary judgment pursuant to the "sword and shield" doctrine because the information Edwards
sought to elicit from Plaintiff at his deposition, and the answers Plaintiff declined to give in
response to questions about his alleged misconduct and criminal activity, would not provide any
information relevant to Plaintiff's claims or Edwards' defense of those claims. Plaintiff's
allegations are based on the belief that Edwards inflated purported claims against Plaintiff and
conducted discovery of high profile figures in the cases pending at the Rothstei