EFTA00613391.pdf

Filing # 37239590 E-Filed 02/01/2016 12:29:17 PM IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE 15-000072 BRADLEY J. EDWARDS and PAUL G. CASSELL, Plaintiffs/Counterclaim Defendants, vs. ALAN M. DERSHOWITZ, Defendant/Counterclaim Plaintiff. DEFENDANT/COUNTERCLAIM PLAINTIFF ALAN M. DERSHOWITZ'S MOTION FOR LEAVE TO AMEND COUNTERCLAIM AND FOR LEAVE TO ASSERT CLAIM FOR PUNITIVE DAMAGES AGAINST PLAINTIFFS/COUNTERCLAIM DEFENDANTS EDWARDS AND CASSELL Defendant and Counterclaim Plaintiff, Alan M. Dershowitz ("Dershowitz"), pursuant to Florida Rules of Civil Procedure 1.170(a), 1.170(e), 1.190(a) and 1.190(f) and Florida Statute § 768.72, hereby respectfully moves this Court for entry of an order granting Dershowitz leave to file his proposed Second Amended Counterclaim, attached as Exhibit A, which includes (a) two additional counts for defamation against Plaintiffs / Counterclaim Defendants Bradley J. Edwards ("Edwards") and Paul G. Cassell ("Cassell") (together, "Plaintiffs"); (b) additional, recently discovered facts in support of Dershowitz's defamation claims, as well as (c) a claim for punitive damages. INTRODUCTION & EXECUTIVE SUMMARY As set forth in Dershowitz's First Amended Counterclaim, Cassell and Edwards first falsely accused Dershowitz of sexually abusing (' as a minor in a publicly filed pleading (the "Joinder Motion") in Jane Doe #1, et at v. United States, Case 1 EFTA00613391 No. 08-cv-80736 (S.D. Fla.) (the "Federal Action"). The attorneys then alerted the press to the false and defamatory pleading and also made a number of extra-judicial statements to the press that either implied or, in some cases, unequivocally stated that the allegations against Dershowitz are true and that the attorneys had carefully investigated the allegations before filing the Joinder Motion. Based on this conduct, the First Amended Counterclaim asserts two counts of defamation. The Court should now grant Dershowitz leave to file the proposed Second Amended Counterclaim, which expands on the factual allegations of Edwards's and Cassell's tortious conduct in several ways: • First, the proposed Second Amended Complaint asserts an additional count for defamation based on the attorneys' actions in asserting the unsubstantiated and irresponsible allegation that Dershowitz participated in and witnessed the abuse of "other minors" -- an independent act of defamation that is actionable separate and apart from the Joinder Motion's false allegations regarding . As with the attorneys' conduct in including false allegations in the Joinder Motion, the outlandish and false accusations that Dershowitz participated in and witnessed the abuse of "other minors" are not privileged or protected because they were totally irrelevant to the Federal Action and were made in bad faith, with the intent to profit financially and/or to injure Dershowitz. • Second, the proposed Second Amended Complaint seeks to add recently discovered facts in support of all Dershowitz's defamation claims. In particular, the proposed pleading includes new factual allegations establishing that Edwards and Cassell made the false allegations against Dershowitz in the Joinder Motion for improper financial 2 EFTA00613392  gain. First, Edwards and Cassell intended to maximize publicity for sensational allegations and secure a book, movie, and/or TV deal that would involve a payment to and her attorneys. Second, Edwards and Cassell intended to create an example of the type of negative and reputation-destroying publicity that will result if and when accuses others of sexual misconduct, with the goal of financial or other gain. In particular, Edwards and Cassell intended to approach a wealthy person, who the attorneys purposefully did not name in the Joinder Motion, to make allegations privately and request a response from him which would include financial or other gain in exchange for avoidance of public disclosure of the allegations against him, notwithstanding that had no colorable claim against him (even if her allegations were true) because the statute of limitations had long since run. Moreover, after the filing of the Joinder Motion, other counsel for made precisely the intended approach to this wealthy individual. The proposed Second Amended Counterclaim also alleges additional instances of defamation by or on behalf of Edwards and Cassell, including the recent statement by their counsel in this defamation action to the press that the attorneys "believe" the false allegations about Dershowitz to be true. • Finally, the proposed Second Amended Counterclaim asserts a claim for punitive damages against Edwards and Cassell. The Court should grant Dershowitz leave to add this claim because the evidence in the record and proffered below by Dershowitz provides a reasonable basis for the recovery of such damages — namely, that Edwards and Cassell acted with actual malice in making statements about Dershowitz that amounted to defamation per se. In other words, the allegations in the proposed 3 EFTA00613393  Second Amended Counterclaim, combined with the evidentiary proffer below, establish that the attorneys acted with knowledge that their defamatory statements about Dershowitz were false or with reckless disregard of whether they were false or not. The proposed Second Amended Counterclaim states a number of viable claims against Edwards and Cassell under Florida law. Given the early stage of these proceedings, the attorneys could not possibly be prejudiced by any of the proposed amendments. Moreover, because Florida law requires leave to amend to be granted freely, and because Dershowitz has not abused the right to amend, it would be an abuse of discretion for the Court to deny Dershowitz's request. LEGAL STANDARDS A. Standard for Granting Leave to Amend Under Florida Rule of Civil Procedure 1.190(a), where a party seeks leave to amend a pleading after amending once as a matter of course, "[I]eave of court shall be given freely when justice so requires." Fla. R. Civ. P. 1.190(a). Where a counterclaim is compulsory in nature — i.e., where the counterclaim arises out of the same transaction or occurrence that is the subject of the complaint — "refusal to grant leave to assert [the] counterclaim[s] would be an abuse of discretion." Fuente v. S. Ocean Transport, Inc., 933 So. 2d 651, 654 (Fla. 3d DCA 2006); see also Kamareddine v. Demery, 600 So. 2d 1311, 1312 (Fla. 3d DCA 1992) ("Denial of leave to file a compulsory counterclaim will generally be an abuse of discretion.") (citation omitted); Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So. 2d 302, 307 (Fla. 1st DCA 1991) ("[D]enial of leave to file the [compulsory] counterclaim will almost always be found to be an abuse of discretion."). "Amendments to pleadings are to be freely and liberally allowed in order that cases may be resolved on their merits, and doubts should be resolved in 4 EFTA00613394 favor of allowing amendment unless and until it appears that the privilege to amend will be abused." Linafelt v. Bev, Inc., 662 So.2d 986, 989 (Fla. 1st DCA 1995) (citation omitted). Moreover, the "refusal to allow an amendment" of any kind "is an abuse of the trial court's discretion 'unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.'" Kay's Custom Drapes, Inc. v. Garrote, 920 So. 2d 1168, 1171 (Fla. 3d DCA 2006) (citation and quotation marks omitted). "Any doubt as to whether a motion for leave should be granted should be resolved in favor of the amendment." Santos v. Flores, 116 So. 3d 518, 520 (Fla. 3d DCA 2013). B. Standard for Punitive Damages In order to assert a claim for punitive damages, a plaintiff or counterclaim plaintiff only needs to make a "reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages." Ha. Stat. § 768.72(1). In other words, the party seeking to add a punitive damages claim needs only to make a reasonable showing of "intentional misconduct" or "gross negligence," as defined below: "Intentional Misconduct" means that the [counterclaim defendants] had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the [counterclaim plaintiff] would result and, despite the knowledge, intentionally pursued that course of conduct, resulting in injury or damage. "Gross negligence" means that the [counterclaim defendants'] conduct was so reckless or wanting in care that it constituted disregard or indifference to the life, safety, or right of persons exposed to such conduct." Fla. Stat. § 768.72 (2)(a)-(b). "When a trial court is determining if a [counterclaim] plaintiff has made a 'reasonable showing' under section 768.72 for recovery of punitive damages, it is similar to determining whether a complaint states a cause of action . . . ." Holmes v. Bridgestone/Firestone, Inc., 891 5 EFTA00613395 So. 2d 1188, 1191 (Fla. 4th DCA 2005). In that respect, when evaluating the sufficiency of evidence proffered in support of a claim for punitive damages, the court must view the evidence in a light most favorable to the moving party. Estate of Despair; v. Avante Gip., Inc., 900 So. 2d 637, 645 (Ha. 5th DCA 2005). A proffer is merely an offer of what evidence the plaintiff or counterclaim plaintiff proposes to present and is not actual evidence. Id. at 642. Florida rules provide that an evidentiary hearing is neither contemplated nor mandated by the statute in order to determine whether a reasonable basis has been established to plead punitive damages. Id. (explaining that a reasonable showing by evidence in the record would typically include depositions, interrogatories and requests for admissions). ARGUMENT Dershowitz's proposed Second Amended Counterclaim (a) asserts an additional count of defamation based on the attorneys' unsupported decision to accuse Dershowitz of abusing and witnessing the abuse of "other minors"; (b) includes additional factual allegations in support of Dershowitz's pending defamation claims, including newly discovered factual details regarding Edwards's and Cassell's improper financial motivations in filing the Joinder Motion and new instances of defamatory extra-judicial statements; and (c) asserts a claim for punitive damages. Because the standard for granting leave to amend is easily satisfied here, the Court must grant Dershowitz's motion to file the proposed Second Amended Counterclaim. A. Dershowitz has not abused the privilege to amend. Dershowitz has not abused the privilege to amend because this "motion for leave to amend was the first instance where [he] requested such relief." Santos, 116 So.3d at 520. Under his absolute right provided under Rule 1.190(a) and Florida case law, Dershowitz previously filed his First Amended Counterclaim (the operative counterclaim) as of right. Boca Burger, Inc. 6 EFTA00613396 v. Forum, 912 So.2d 561, 567 (Fla. 2005), as revised on denial of reh'g (Sept. 29, 2005). Therefore, this is the first time Dershowitz has requested leave to amend and only does so now based on facts and information recently discovered in discovery. Under Florida law, in order to deny a party's motion for leave to amend, there must be a clear abuse of the privilege to amend. See Bouldin v. Okaloosa Cty., 580 So.2d 205, 207 (Fla. 1st DCA 1991). This high bar met is not met where a party has amended his original complaint before any responsive pleadings were filed, and then attempted to amend his complaint again after the opposing party filed its motion to dismiss. See id. ("This does not rise to the level of clear abuse of the privilege to amend."); see also Dimick v. Ray, 774 So.2d 830, 833 (Fla. 4th DCA 2000) (holding the trial court erred in finding abuse of the privilege where there was only one other prior amendment to the complaint before the party's motion for leave to amend). Rather, abuse is found where a party proposes a "virtual[ly] endless stream of amendments, all failing to state even a basic cause of action, such as . . . . [where] the plaintiff failed in four attempts to cure defects in his complaint." Dimick 774 So.2d at 833. Clearly, such abuse is not present in this case. B. Plaintiffs will not suffer any prejudice by the proposed amendment. Allowing Dershowitz's proposed Second Amended Counterclaim will not prejudice Edwards and Cassell because discovery has not yet concluded and trial is not yet scheduled. See, e.g., Carib Ocean Shipping, Inc. v. Arnuu, 854 So.2d 234, 236-37 (Fla. 3d DCA 2003) (citing cases demonstrating lack of prejudice even where amendment is sought "shortly before trial"). Florida courts typically deny requests to amend based on prejudice only where a party seeks to add new and different causes of action either during trial or after the conclusion of trial. See Dimick, 774 So.2d at 833 ("The prejudice . . . was obvious since the defendants had already fully prepared for, and in some instances, had actually completed the trial when the plaintiffs 7 EFTA00613397 sought to add different claims."). Here, a trial has not even been set, and discovery is very much ongoing. Importantly, party depositions are still being conducted, with the continuance of Cassell's deposition set for February and the start of Edwards's deposition not even scheduled yet. Dershowitz's deposition likewise has not yet been completed. "Furthermore, any prejudice which may be deemed to have existed ordinarily should be remedied, not by denial of the amendment, but by a continuance." Armas, 854 So.2d at 236 n.2. Finally, granting leave for Dershowitz to file his proposed Second Amended Counterclaim could not possibly prejudice Edwards or Cassell because the newly added count for defamation is based on false and outrageous allegations from the very same pleading that already is at issue in the operative First Amended Counterclaim. Moreover, in discovery to date, Cassell has already been questioned extensively at his unconcluded deposition about the allegations that Dershowitz participated in and witnessed the abuse of "other minors" and Edwards's deposition has not yet been set. Thus, the preparations that have been conducted by the parties to date with respect to Dershowitz's First Amended Complaint will have significant overlap with of the discovery that is relevant to Dershowitz's proposed Second Amended Complaint. D. Amendment would not be futile because the Second Amended Counterclaim states claims for relief under Florida law. The requested amendment would not be futile as the claims in Dershowitz's proposed Second Amended Counterclaim all present causes of action that are recognized by Florida law. See Conklin v. Carroll, 865 So. 2d 597, 600 (Fla. 2d DCA 2004) (reversing trial court's decision denying leave to amend based on futility because Florida law recognizes the alleged cause of action). Count II in the Proposed Second Amended Counterclaim states a viable claim for 8 EFTA00613398 defamation based on Edwards's and Cassell's conduct in asserting the false and irresponsible allegations that Dershowitz was "a participant in the abuse of [] other minors" and was an eye- witness to the abuse of "other minors." These allegations constitute separate, independent instances of actionable defamation by the attorneys, which is not protected the litigation privilege because the allegations are wholly impertinent to the issues in the Joinder Motion or the Federal Action more generally. Indeed, United States District Judge Kenneth Marra has already concluded — in an unchallenged order that is binding on Edward and Cassell in this action — that the allegations were "unnecessary," "immaterial," and "impertinent" because they lacked any connection to the issues in dispute in the Federal Action, and directed the "lurid" allegations to be stricken from the record as "sanction enough" for the attorneys. Moreover, because this new count arises out of the same transaction and occurrence that is at issue in the attorneys' complaint in this defamation action, it is part of Dershowitz's compulsory counterclaim against Edwards and Cassell. As such, refusing to grant leave to assert such compulsory counterclaim would be an abuse of this Court's discretion. See Fuente, 933 So.2d at 654; Kamareddine, 600 So.2d at 1312 ("Denial of leave to file a compulsory counterclaim will generally be an abuse of discretion."); Bill Williams, 592 So.2d at 307 ("[D]enial of leave to file the [compulsory] counterclaim will almost always be found to be an abuse of discretion."). Counts I, III, and IV of the proposed Second Amended Counterclaim likewise state claims for relief. As compared to the First Amended Counterclaim, the proposed amended pleading adds two types of new allegations. First, with respect to Count IV based on Edwards's and Cassell's extra-judicial statements, Dershowitz seeks to add new examples of defamatory conduct. Most notably, the proposed Second Amended Counterclaim alleges additional 9 EFTA00613399 statements made by or on behalf of Edwards and Cassell to the media and other third parties that adopt false and defamatory allegations about Dershowitz without qualification, including a statement by Jack Scarola, the attorneys' counsel in this case, to the Palm Beach Daily News on behalf of himself and Edwards and Cassell that "[w]hetherIMI=Is statements are true or not — and we believe them to be true — it really doesn't make a difference as to whether Brad Edwards and Paul Cassell reasonably believed them to be true." This statement represents an additional independent instance of defamation that is actionable under Florida law. Second, with respect to all of Dershowitz's defamation claims, the proposed Second Amended Counterclaim adds new factual details supporting the bad faith motivations of Edwards and Cassell, providing further support for the inapplicability of the litigation privilege and the conclusion that the attorneys acted with actual malice. Since Dershowitz filed the First Amended Counterclaim as of right, Dershowitz has discovered additional facts showing that the attorneys included the false allegations about Dershowitz in the Joinder Motion for the improper purpose of financial gain. In particular, certain information suggests that Plaintiffs, =, and other counsel decided to name Dershowitz to create an "example" of the negative publicity that would result if and when decides to publicly accuse other individuals who were deliberately not named in the Joinder Motion. Edwards, Cassell, and other attorneys specifically intended to use the "Dershowitz example" as part of an effort to induce at least one wealthy individual for financial or other gain to avoid being identified publicly even though had no viable claim against him, even assuming her allegations were true, because the statute of limitations had long since run. Because the proposed Second Amended Counterclaim states viable claims for defamation and defamation-by-implication, 10 EFTA00613400 Dershowitz's motion for leave to amend should be granted. E. The Court should grant Dershowitz leave to add a claim for punitive damages because the evidence in the record and proffered by Dershowitz reasonably shows Edwards and Cassell were grossly negligent and acted with deliberate disregard of Dershowitz's interest in lodging these false allegations against him. To assert a claim for punitive damages — an amendment that should be granted freely under Rule 1.190(a) — Dershowitz need only make a "reasonable showing" that the counterclaim defendants were "grossly negligent" or acted with "intentional misconduct." Fla. Stat. §768.72(2). The existing record and proffered evidence below clearly establish a "reasonable showing" that Edwards and Cassell were grossly negligent and acted with deliberate disregard of Dershowitz's interests in falsely accusing Dershowitz in publicly filed court documents of engaging in criminal conduct with and "other minors" and then in repeating these false accusations in written and oral correspondence with the media and others. Moreover, Dershowitz has a good faith basis to believe that the counterclaim defendants engaged in intentional misconduct as they made these statements. Importantly, a counterclaim plaintiff may recover punitive damages in an action for per se defamation "even though the amount of actual damages is neither found nor shown, for in such a case, the requirement of a showing of actual damages as a basis of an award for exemplary damages is satisfied by the presumption of injury which arises from a showing of [defamation] that is actionable per se." See Lundquist v. Alewine, 397 So.2d 1148, 1150 (Fla. 5th DCA 1981) (citation omitted). Put differently, "[w]hen a statement facially degrades a [counterclaim] plaintiff, brings [him] into ill repute, or causes similar injury with innuendo, the statement is defamatory per se" and therefore serves a predicate for punitive damages even in the absence of actual damages, assuming the counterclaim plaintiff makes the appropriate showing of actual malice in cases where the counterclaim plaintiff is a public figure or limited public 11 EFTA00613401 figure, or where the defamatory statement at issue involves an issue of public concern. See Carroll v. TheStreet.com, Inc., No. 11-CV-81173, 2014 WL 5474061, at *16 (S.D. Fla. July 10, 2014) (citing Mid—Florida Television Corp. v. Boyles, 467 So.2d 282, 283 (Fla. 1985)). As the Fourth District Court of Appeal has explained: ...[W]hen the claim is defamation per se, liability itself creates a conclusive legal presumption of loss or damage and is alone sufficient for the jury to consider punitive damages. [...] To sum up, Florida's unusually high protection of personal reputation derives from the common consent of humankind and has ancient roots. It is highly valued by civilized people. Our state constitution and common law powerfully support it. This is a value as old as the Pentateuch and the Book of Exodus, and its command as clear as the Decalogue: "Thou shall not bear false witness against thy neighbor." The personal interest in one's own good name and reputation surpasses economics, business practices or money. It is a fundamental part of personhood, of individual standing and one's sense of worth. In short, the wrongdoing underlying the punitive damages in this case has Florida law's most severe condemnation, its highest blameworthiness, its most deserving culpability. For slander per se, reprehensibility is at its highest. Lawnivood Med. Ctr., Inc. v. Sadow, 43 So.3d 710, 727-29 (Fla. 4th DCA 2010), review denied, 36 So.3d 84 (Fla. 2010), and cert. denied, 562 U.S. 1135 (2011) (citation and footnote omitted). Here, Plaintiffs' decision to draft, sign, and file a public pleading falsely accusing Dershowitz of sexually abusing underage girls facially degraded Dershowitz and tarnished his reputation with these reprehensible allegations, thus constituting defamation per se. Moreover, Dershowitz alleges in the Second Amended Counterclaim and will prove at trial that Plaintiffs made the false allegations with actual malice, i.e., with the knowledge that the allegations were false or with reckless disregard for their falsity. In such circumstances, "the requirement of a showing of actual damages as a basis of an award for exemplary damages is satisfied by the presumption of injury which arises from a showing of [defamation] that is actionable per se." See Alewine, 397 So.2d at 1150. Thus, Dershowitz has clearly satisfied Florida's statutory requirement of making a "reasonable showing" that Edwards and Cassell were "grossly negligent" or acted with "intentional misconduct" in defaming Dershowitz. 12 EFTA00613402  In addition to Dershowitz's allegations, the following represents existing record evidence as well as Dershowitz's proffer of evidence he proposes to present at trial showing that Edwards and Cassell engaged in "intentional misconduct," or at the very least were "grossly negligent" in defaming Dershowitz, which would support his claim for punitive damages: • On April 7, 2015, Judge Marra expressly held that "lurid" allegations about Dershowitz are "impertinent" to the issues in the federal proceeding and ordered them to be stricken from the record as "sanction enough" for the attorneys' conduct. • When asked at the first session of his deposition to provide the attorneys' basis, on the date of the Joinder Motion filing, for including the allegation that Dershowitz participated in "the abuse of other minors," Cassell provided no evidentiary basis and instead stated the following: And so, yes, I have 24 names in mind as possible sexual abuse victims that Dershowitz may or may not have abused. And I have not been able to pinpoint exactly what happened, because the people who would be in the best position to help me sort out what the names were, specifically Jeffrey Epstein, among others, have refused to cooperate and give me those names. But I very much believe that there were going to be other girls who would come forward and swear under oath that Alan Ders ' bused them in exactly the same ■ as he had sexually abuse See Cassell Tr. Vol. I, at 36:20-37:1 and 60:5-10 (emphasis added). • When questioned about his unequivocal extra-judicial statement to ABC that he and Edwards represented , the woman "was sexually abused by Prince Andrew and Alan Dershowitz" in the same email that the lawyers were "exploring options to tell I ] side of the story," Cassell turned his own words on their head by stating that he thinks the email shown to him "says that I'm the lawyer who is representing someone who has — has made those allegations." See Cassell Tr. Vol. I, at 311:3-5. • Plaintiffs contend that deposition testimony of Jeffrey Epstein's house-man Juan Alessi from a separate but related proceeding, supports their decision to accuse Dershowitz of heinous criminal conduct in the Joinder Motion. However, Plaintiffs have repeatedly and deliberately mischaracterized Alessi's testimony. When taken in context, that testimony does not provide any support for the attorneys' false allegations against Dershowitz. Moreover, prior to filing the Joinder Motion, Plaintiffs made no effort to contact Alessi to inquire whether the statements they have 13 EFTA00613403  attributed to him are, in fact, true. • Plaintiffs did not find a single person to corroborate allegations against Dershowitz prior to the December 31, 2014 filing of their Joinder Motion. • Plaintiffs were on notice as early as the beginning of 2014 that certain of allegations involving purported sexual misconduct by others had been contradicted, which would have provided any reasonable lawyer with a basis to question her credibility and the veracity of her allegations against Dershowitz. • Plaintiffs were not concerned with gathering supporting evidence supporting the allegations against Dershowitz before filing the Joinder Motion because their real purpose in the filing was to create an example of the adverse publicity and turmoil that would be inflicted on at least one wealthy individual against whom they planned to assert similar allegations. • other counsel — with whom Edwards and Cassell have a common interest agreement — approached representatives of that wealthy individual; conveyed graphic and lurid accusations that the individual had sexually abused her as a minor and forced her to dress up in revealing lingerie; and asked for the wealthy individual to provide a response to the accusations, notwithstanding that the statute of limitations applicable to any claim may have had against the individual has long since passed. • Emails produced reveal that Plaintiffs began alerting journalists to Joinder Motion almost immediately after filing the pleading and began shopping around for the best interview offer for that would get the most exposure from "sympathetic" media outlets. Further, Dershowitz also has a good faith basis to believe that these efforts began even before the filing of the Joinder Motion. • The attorneys have made and continue to make statements to the press that imply and, in some cases, unequivocally state that the allegations about Dershowitz are true and that the attorneys conducted a thorough investigation into the allegations rior to ri e pleading, including the recent statement that "[w]hether ]'s statements are true or not — and we believe them to be true — it really doesn't make a difference as to whether Brad Edwards and Paul Cassell reasonably believed them to be true." (Emphasis added) As discovery is ongoing, Dershowitz expects that more evidence will be revealed supporting that Edwards and Cassell defamed Dershowitz with actual malice. Even without additional evidence, however, the record and the proffered evidence cited above clearly amount a "reasonable showing" that Edwards and Cassell engaged in "intentional misconduct" or in the 14 EFTA00613404 very least, "gross negligence" in falsely accusing Dershowitz, so as to warrant the addition of a claim for punitive damages. CONCLUSION Dershowitz should be granted leave to file his proposed Second Amended Counterclaim, attached as Exhibit A, which includes (a) an additional count against Plaintiffs for an additional defamation against Dershowitz; (b) additional, recently discovered facts in support of Dershowitz's defamation claims, as well as (c) a claim for punitive damages. The proposed Second Amended Counterclaim states a number of viable claims against Edwards and Cassell under Florida law. Given the early stage of these proceedings, the attorneys could not possibly be prejudiced by any of the proposed amendments. Moreover, because Florida law requires leave to amend to be granted freely, and because Dershowitz has not abused the right to amend, it would be an abuse of discretion for the Court to deny Dershowitz's request. 15 EFTA00613405 Respectfully submitted, s/ Thomas E. Scott Steven R. Safra, FBN 057028 COLE, SCOTT & KISSANE, P.A. Richard A. Simpson (pro hac vice) Ma E. Bo 'a ro hac vice) Ashle E. Filer ro hac vice) Nicole Audet Richardson (pro hac vice) Counsel for Alan M. Dershowitz 16 EFTA00613406  CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing has been electronically filed through the Clerk of Broward County by using the Florida Courts eFiling Portal and thus served by electronic mai to: Jack Scarola, Esq, Searcy Denney Scarola Barnhart & Shipley, P.A., Counsel for Plaintiff, o: Joni J. Jones, Esq., Assistant Utah Attorney General, Counsel for Plaintiff Cassell S to: Bradley J. Edwards, Esq, Farmer, Jaffe et al, to: Paul G. Cassell, Esq.,; 0: Sigrid S. McCawley, Esq., Boies Schiller & Flexner, LLP, this day of February, 2016. By: sffhomas E. Scott THOMAS E. SCOTT FBN: 149100 17 EFTA00613407 EXHIBIT A EFTA00613408  IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO.: CACE 15-000072 BRADLEY J. EDWARDS and PAUL G. CASSELL, Plaintiffs/Counterclaim Defendants, vs. ALAN M. DERSHOWITZ, Defendant/Counterclaim Plaintiff. DEFENDANT / COUNTERCLAIM PLAINTIFF ALAN M. DERSHOWITZ'S SECOND AMENDED COUNTERCLAIM EXECUTIVE SUMMARY Counterclaim Plaintiff Alan M. Dershowitz ("Dershowitz") asserts this Second Amended Counterclaim for defamation and punitive damages on knowledge, information and belief against Plaintiffs / Counterclaim Defendants Paul G. Cassell ("Cassell") and Bradley J. Edwards ("Edwards"), based on the attorneys' false and defamatory statements about Dershowitz made both in a court pleading and directly to the press and others, totally outside of any judicial proceeding. As detailed below, Cassell and Edwards used a federal court pleading to accuse Dershowitz of engaging in criminal conduct by having sex with a minor, ("="), and by participating in and witnessing the abuse of other, unnamed minors. The attorneys' statements in the pleading are not privileged because they were totally irrelevant to the proceeding before the federal court. Indeed, United States District Judge Kenneth Main I EFTA00613409 has held that the "lurid" allegations about Dershowitz were "unnecessary," "immaterial," and "impertinent," and ordered them stricken from the record. Moreover, Edwards and Cassell asserted the false accusations against Dershowitz in bad faith, with the intent to profit financially and/or to injure Dershowitz. Evidence adduced during discovery shows that the attorneys hoped to profit off of their decision to include sensational allegations about Dershowitz in two primary ways. First, Edwards and Cassell intended to generate interest from media outlets, television producers, and/or book publishers willing to pay for more "lurid" details from about being a "sex slave." Second, the attorneys plotted to use Dershowitz as an example of the negative publicity that would befall other prominent individuals who may name in the future, but whom the attorneys and purposefully did not name in the pleading. In particular, Edwards and Cassell, together with and her other attorneys, had the goal of using the "Dershowitz example" as leverage in approaching at least one wealthy individual against whom made allegations and requesting a response from him, for financial or other gain. has asserted under oath that Jeffrey Epstein ("Epstein") "arranged for many politically powerful, older men to have sex with underage girls—including me. Because these were crimes—and because some of these men were married—this gave Epstein the ability to blackmail these men and obtain political and other favors." Ironically, Edwards and Cassell included the false allegations against Dershowitz in the federal court pleading to make an example of him that they (along with and other counsel for =, who are not parties to this case) could use in approaching one wealthy businessman — who they deliberately did not name in the federal pleading — to tell him about allegations against him which she had the power to disclose publicly. The plan was to ask that individual for a 2 EFTA00613410 response to the allegations which would result in financial or other gain to avoid being publicly identified as someone who abused as a minor, notwithstanding that had no colorable claims against that individual because the statute of limitations had long since expired (even if her allegations of sexual abuse are true). In furtherance of their improper financial goals, Edwards and Cassell initiated a massive media campaign against Dershowitz immediately after filing the defamatory pleading on the public docket. The attorneys alerted the press to the false and defamatory statements about Dershowitz and sent copies of the pleading to reporters. This extra-judicial conduct amounts to a re-publishing of the defamatory allegations in the pleading and therefore is separately actionable under Florida defamation law. As part of their media crusade against Dershowitz, Edwards and Cassell have also accused Dershowitz of criminal conduct in direct and unqualified statements to the press and others, entirely separate from the pleading referenced above. Among other such statements, Cassell — on behalf of himself and Edwards — told ABC News in writing and without qualification that Dershowitz had sexually abused a minor. Specifically, in an email to ABC News that was produced in discovery, Cassell stated that he and Edwards represent "the young woman who was sexually abused by Prince Andrew and Alan Dershowitz" (emphasis added). Edwards and Cassell have also made other false and defamatory statements to the press and otherwise by asserting directly or by implication that Dershowitz, in fact, sexually abused Most recently, the attorneys' counsel of record in this defamation case told the Palm Beach Daily News that he and his clients "believe I allegations to be true." These statements were made wholly outside of the courtroom and are not possibly privileged, 3 EFTA00613411 particularly given the attorneys' bad faith intent in making them with the goal of profiting financially. FACTUAL BACKGROUND The Parties 1. Dershowitz is the Felix Frankfurter Professor Emeritus of Law at Harvard Law School. Dershowitz is a graduate of Brooklyn College and Yale Law School who joined the Harvard Law School faculty at age 25 after clerking for Judge David Bazelon and Justice Arthur Goldberg. 2. Dershowitz is one of many attorneys, including Ken Starr and Roy Black, who represented Jeffrey Epstein in connection with a criminal investigation conducted by federal and local law enforcement officials, including with respect to the negotiation of a Non-Prosecution Agreement entered into between Mr. Epstein and the United States Attorney's Office for the Southern District of Florida in 2007. 3. Cassell is a former United States District Court Judge for the District of Utah and is a law professor at the University of Utah. Cassell has appeared as counsel in several litigation matters that involve crime victims' rights, including in matters that have generated significant national media attention. Cassell has been admitted to practice pro hac vice in at least one case pending in federal court in Florida, which has generated substantial national publicity and which is defined below as the "Federal Action." 4. Edwards is a resident of the State of Florida and is an attorney in the State of Florida. Edwards formerly served as an attorney in the Broward County State's Attorney Office. Edwards has appeared as counsel in several litigation matters that involve crime victims' rights, 4 EFTA00613412 including the "Federal Action" defined below and other matters that have generated substantial national publicity. The Federal Action 5. On July 7, 2008, Edwards initiated a civil lawsuit on behalf of "Jane Doe #1" against the United States of America (the "Government") under the Crime Victims' Rights Act, 18 U.S.C. § 3771 (the "CVRA") captioned Jane Doe #1, et al. v. United States, Case No. 08-cv- 80736-MARRA/JOHNSON (S.D. Fla.) (the "Federal Action"). 6. According to the "Emergency Petition" filed in the Federal Action (DE #1), Jane Doe #1 is an adult who allegedly "was a victim of federal crimes committed by Jeffrey Epstein" ("Epstein") within the jurisdiction of the Southern District of Florida when Jane Doe #1 was a minor, including but not limited to sex trafficking of children by fraud; use of a means of interstate commerce to entice a minor to commit prostitution; and wire fraud. The Emergency Petition alleged that the Government had violated Jane Doe #1's rights under the CVRA in connection with its plea negotiations with Epstein. 7. At a hearing held on July 18, 2008 (DE #15), the court in the Federal Action granted Edwards's oral motion to join "Jane Doe #2" as an additional plaintiff in the Federal Action. Like Jane Doe #1, Jane Doe #2 alleges that she was a victim of federal crimes committed by Epstein when she was a minor and that the Government violated her rights under the CVRA. 8. Cassell filed a motion for limited appearance in the Federal Action as co-counsel on behalf of Jane Doe #1 and Jane Doe #2 on July 28, 2008 (DE # 16), which was granted on July 30, 2008 (DE #18). 5 EFTA00613413  9. On March 21, 2011, Jane Doe #1 and Jane Doe #2 filed a "Motion for Finding of Violations of the Crime Victims' Rights Act and Request for a Hearing on Appropriate Remedies" (DE #48). That filing alleged that the actions of the Government in connection with its investigation of Epstein and the execution of the Non-Prosecution Agreement violated Jane Doe #1 and Jane Doe #2's rights under the CVRA, including "the right to confer with prosecutors and the right to fair treatment." Jane Doe #1 and Jane Doe #2 further argued that, in the event that the Court agreed that the Government committed one or more CVRA violations. the appropriate remedy would be to invalidate the Non-Prosecution Agreement. 10. By order dated September 26, 2011 (DE #99), the court held that the Federal Action could go forward under the CVRA but deferred a ruling, pending further factual development, as to whether the CVRA's rights attached to Jane Doe #1 and Jane Doe #2 and whether the Government violated those rights. COUNT I - DEFAMATION (FALSE ALLEGATIONS IN JOINDER MOTION REGARDING 11. Dershowitz re-alleges Paragraphs 1-10 of this Counterclaim as if fully set forth herein. 12. On December 30, 2014, Cassell and Edwards filed a pleading in the Federal Action titled "Jane Doe #3 and Jane Doe #4's Motion Pursuant to Rule 21 for Joinder in Action" (DE #279) (the "Joinder Motion"). "Jane Doe #3" is a pseudonym used by , who has now admitted that she has no right to proceed anonymously and has public revealed herself. 13. In a section titled "[ I Circumstances," the Joinder Motion alleges that first met Epstein in 1999 and that Epstein "kept a as his sex slave from about 1999 through 2002, when she managed to escape to a foreign country." 6 EFTA00613414  14. Later in the section titled a] Circumstances," the Joinder Motion alleges that "Epstein also sexually trafficked the then-minor M], making her available for sex to politically-connected and financially-powerful people." In several paragraphs that have since been ordered stricken from the record, the Joinder Motion alleges as follows: One such powerful individual that Epstein forced then-minor M] to have sexual relations with was former Harvard Law Professor Alan Dershowitz, a close friend of Epstein's and well-known criminal defense attorney. Epstein required ] to have sexual relations with Dershowitz on numerous occasions while she was a minor, not only in Florida but also on private planes, in New York, New Mexico and the U.S. Virgin Islands. In addition to being a participant in the abuse of [ ] and other minors, Dershowitz was an eye-witness to the sexual abuse of many other minors by Epstein and several of Epstein's co-conspirators. Dershowitz would later play a significant role in negotiating the NPA on Epstein's behalf. Indeed, Dershowitz helped negotiate an agreement that provided immunity from federal prosecution in the Southern District of Florida not only to Epstein, but also