EFTA00801238.pdf

1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 502009CA040800XXXXMB JEFFREY EPSTEIN, Plaintiff, VS. SCOTT ROTHSTEIN, individually, BRADLEY EDWARDS, individually, Defendants/Counter-Plaintiffs. TRANSCRIPT OF PROCEEDINGS DATE TAKEN: Wednesday, September 6th, 2017 TIME: 8:54 a.m. - 9:09 a.m. PLACE 205 N. Dixie Highway, Room 10C West Palm Beach, Florida BEFORE: Donald Hafele, Presiding Judge This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were reported by: Sonja D. Hall Palm Beach Reporting Service, Inc. 1665 Palm Beach Lakes Boulevard, Suite 1001 West Palm Beach, FL 33401 (561) 471-2995 Palm Beach Reporting Service, Inc. EFTA00801238  2 1 2 3 APPEARANCES: 4 For Plaintiff: 5 SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 6 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 7 By JACK SCAROLA, ESQUIRE 8 For Jeffrey Epstein: 9 W. CHESTER BREWER, JR., P.A. 250 S. Australian Avenue, Suite 33401 10 West Palm Beach, FL 33401 By W. CHESTER BREWER, JR., P.A., ESQUIRE 11 12 For Defendants: 13 TONJA HADDAD, P.A. 315 S.E. 7th Street, Suite 301 14 Fort Lauderdale, FL 33301 By TONJA HADDAD COLEMAN, ESQUIRE 15 16 17 18 19 20 21 22 23 24 25 Palm Beach Reporting Service, Inc. EFTA00801239  3 1 THE COURT: Mr. Scarola, Ms. Haddad, 2 Mr. Brewer. 3 MR. BREWER: Good Morning, Your Honor. 4 MS. HADDAD: Good morning. 5 THE COURT: I think I have seen it 6 before. Please make sure you send in 7 materials in advance. 8 It was reset, so it might have created 9 a little bit of a problem. 10 MS. HADDAD: Your Honor, this was sent 11 to your office -- I have a copy of the 12 letter right here -- on August 28th. 13 THE COURT: Again, I don't have it here 14 in front of me, but don't worry about it. 15 MR. SCAROLA: It is only a motion to 16 set a hearing, Your Honor. 17 THE COURT: That's fine. Not the end 18 of the world. 19 So this is a motion for summary 20 judgment; is that correct? 21 MR. BREWER: Yes, Your Honor. 22 MS. HADDAD: Yes, Judge. 23 THE COURT: How much time you think we 24 are going to need? 25 MR. BREWER: We anticipate about an Palm Beach Reporting Service, Inc. EFTA00801240  4 1 hour, Your Honor. 2 THE COURT: Mr. Scarola, any thoughts? 3 MR. SCAROLA: Your Honor, this is a 4 renewed motion for summary judgment. 5 Your Honor may recall a motion for 6 summary judgment was heard before Your 7 Honor. Your Honor granted the motion for 8 summary judgment. There was an appellate 9 review of that ruling and a reversal sending 10 the case back. 11 As a consequence we believe the hearing 12 will not take very long at all, because 13 there are procedural issues that will 14 preclude reraising the arguments that have 15 been raised in this motion. 16 Nonetheless, I think that setting an 17 hour aside is not unreasonable. 18 THE COURT: What is the motion based 19 on? We went through the issue of malicious 20 prosecution and abuse of process. 21 I believe the only remaining claim, 22 then, is a malicious prosecution claim, 23 correct? 24 MS. HADDAD: Yes, Judge. The only 25 remaining claim is malicious prosecution. Palm Beach Reporting Service, Inc. EFTA00801241  5 1 And the Court granted the motion solely -- 2 THE COURT: I remember. And the Fourth 3 District was quite kind, perhaps to 4 alleviate some of the appellate's concerns regarding whether or not the law was 6 properly followed. And Judge Warner wrote, 7 what I thought to be a very complimentary 8 opinion regarding the following of the law 9 by the Court. 10 Ultimately that case -- the Fabricant 11 case, which was Judge Blanc's case -- went 12 up on conflict review to the Florida Supreme 13 Court, and they followed the Fourth District 14 Court of Appeal's position. 15 So just for the record, I recognize and 16 remember the entire history, at least to the 17 extent indicated. 18 MS. HADDAD: Thank you, Judge. 19 THE COURT: So what is the gravamen of 20 the motion as we sit here today? 21 MS. HADDAD: The gravamen of the 22 motion, Judge, are the grounds that were not 23 argued at the initial motion for summary 24 judgment, for which we asked for an hour 25 We believe an hour is sufficient. Palm Beach Reporting Service, Inc. EFTA00801242  6 1 THE COURT: So you are talking about 2 some or all of the six or so prong analysis 3 when malicious prosecution claim is brought? 4 MS. HADDAD: Yes, Judge. The abuse of 5 process claim has been disposed of in our 6 favor, and we are only moving forward to 7 attack the elements of the malicious 8 prosecution claim, you are correct. 9 THE COURT: All right, well, as luck 10 will have it, next Friday is the calendar 11 call for this coming docket. And, of 12 course, we have no idea where we are going 13 to be come next week. So at this stage, I 14 don't have a problem putting you on the 15 September 15th docket. 16 I presume we are going to be having a 17 significant number of motions relating to 18 this case. Is that fair? 19 MS. HADDAD: Very fair, Judge, yes. 20 MR. SCAROLA: I would disagree. But 21 knowing the inventiveness and resources 22 available to the opposition, it would not 23 surprise me that an effort in that regard 24 were made. 25 THE COURT: Mr. Scarola, don't make me Palm Beach Reporting Service, Inc. EFTA00801243  7 1 take out the Kleenex and start wiping my 2 eyes because of the depravation of your 3 client's resources that the firm, that he 4 has wisely retained, is at the controls. MR. SCAROLA: We consider ourselves to 6 be an adequate match for whatever the 7 resources are on the other side. 8 THE COURT: And just let the record 9 show that we have somewhat of a nervous 10 smile on our faces. We're all concerned 11 about what might be transpiring over this 12 weekend and beyond. So I appreciate the 13 courtesies. 14 But I would expect that -- have you 15 filed any motions in limine yet? Where are 16 we there? 17 MS. HADDAD: Your Honor, we have not 18 yet filed motions in limine. Right now we 19 are still preparing. 20 There are some previous -- I don't want 21 to get involved, because we are here on a 22 five-minute UMC -- but there's some previous 23 discovery that's still not yet been complied 24 with. 25 Unfortunately, yesterday I was just Palm Beach Reporting Service, Inc. EFTA00801244  8 1 about ready to finalize them, but my office 2 was being evacuated. I live in a flood zone 3 in Broward County. 4 THE COURT: I understand. MS. HADDAD: They will be filed before 6 the 15th. 7 THE COURT: I understand. I am not 8 trying to pressure anybody. What I am 9 trying to do is make sure because I don't 10 think that I am being at all presumptuous 11 here that there is going to be motions in 12 limine brought, probably by both sides, and 13 those have to be tackled, and we are running 14 out of time, to be honest with you, 15 especially with the storm season 16 approaching, what we are staring down right 17 now. 18 So, you know, here we are. We don't 19 have those set as yet. My calendar runs 20 September 25th through December 1st, this 21 one coming up, the September docket. 22 MS. HADDAD: Judge, you specially set 23 us the week of December 5th for trial. 24 THE COURT: I am well aware of that, 25 Ma'am, that's why I'm suggesting why haven't Palm Beach Reporting Service, Inc. EFTA00801245  9 1 the motions been filed as yet. Seems to me 2 to be somewhat hard to believe that during 3 the pendency of the period of time -- at 4 least from the time the Supreme Court 5 rendered i's decision -- which was when? 6 You remember, approximately? 7 MR. SCAROLA: I don't recall, Your 8 Honor. It has been quite a few months. 9 MR. BREWER: It's been quite a few 10 months, but it hasn't been that long. 11 THE COURT: Well, it's been long 12 enough, is what I'm trying to suggest to 13 you, that there should be motions already 14 filed. 15 MS. HADDAD: Judge, the motions were 16 filed the last three times we were set for 17 trial. The case was stayed, and as such we 18 didn't think it was appropriate to be 19 filling things when the case was stayed. 20 THE COURT: I am not suggesting that, 21 Ma'am. Please don't use that type of tone 22 here. 23 What I am suggesting solely is if they 24 have been filed, then that's fine, then we 25 can find hearing time. Palm Beach Reporting Service, Inc. EFTA00801246  10 1 But motions in limine that I believe 2 are going to be necessary to be heard -- and 3 I am not going to suggest what the subject 4 matter is going to be, but I think it is rather obvious -- if it's obvious to me 6 handling 1,350 cases, plus whatever we are 7 getting now from the foreclosure division, 8 then I don't think I am being overly 9 presumptuous. 10 But in any event, as I said, we are 11 running out of time. Friday comes, and we 12 do have a docket call -- which I'm hoping 13 and praying that we will, simply because it 14 will mean that we are not in the grave 15 danger that we may be -- it's going to be, 16 at least to a degree, somewhat late. 17 I don't hear motions in limine during 18 trial, not those that can be contemplated. 19 Certainly, if something comes up that's not 20 been thought about, then perhaps that might 21 be a possibility. But what I'm talking 22 about is basic issues that I foresee being 23 an issue and being in play, potentially. We 24 need to get rulings on these things rather 25 quickly, in my respectful view. Palm Beach Reporting Service, Inc. EFTA00801247  11 1 MR. SCAROLA: I was going to suggest, 2 Your Honor, that if we are going to be 3 gathered together for a motion for summary 4 judgment, we might have a case management 5 conference at the same time, at which 6 deadlines can be set and hearings can be 7 set. 8 I know that we have a motion to compel 9 answers to punitive damage interrogatories 10 over Fifth Amendment objections that have 11 been raised. That's the one motion that I 12 know we have that we would ask the Court to 13 address. That might be a good way to do it. 14 THE COURT: And I appreciate that. I 15 don't want to suggest anything. But I am 16 just -- again, as a former trial lawyer and 17 a judge now for 18 years, I tend to foresee 18 things that I believe are going to be 19 necessary on some of those larger matters 20 that I am dealing with here. 21 Again, I know it's fits and starts. I 22 recognize that. I appreciate it and respect 23 that. But at the same you have to 24 understand that I am trying to manage a 25 docket. Palm Beach Reporting Service, Inc. EFTA00801248  12 1 I have set this case for a time 2 certain. And calendar call for this current 3 docket is Friday, next week, a week from 4 today (sic). And -- 5 MR. SCAROLA: I'm sorry. Today? Today 6 is Wednesday. 7 THE COURT: I keep thinking today is 8 Friday. I am presuming today is going to be 9 the last day of the week. Excuse me. My 10 apologies. 11 A week from Friday. 12 MR. SCAROLA: I'm trying to make sure 13 we are on the same page. 14 THE COURT: We are. 15 What I'm trying to point out is the 16 simple fact that we are looking at a time 17 crunch here. And I don't want my back to be 18 up against the wall because I am worried 19 about getting things taken care of when they 20 should have already been taken care of. 21 That's the message that I am leaving you 22 with today. 23 So, what I am thinking about doing is 24 probably setting aside a day, if I have 25 it -- I know I have at least one 10-day Palm Beach Reporting Service, Inc. EFTA00801249  13 1 medical malpractice case that's set during 2 that docket. And there are a lot of cases 3 that I'm aware of that are lengthy on this 4 coming docket, so I will do the best I can. 5 But what I'm envisioning is perhaps 6 setting something like a day aside -- 7 perhaps on a Friday, if I can manage it -- 8 in mid-November, and that way, hopefully, 9 you will have the benefit of the Court's 10 ruling. Hopefully, we will have the case on 11 track to be tried, and you will know where 12 we are at that point in time from the 13 standpoint of the issues that are going to 14 be teed up. 15 Your thoughts? 16 MR. SCAROLA: That's certainly 17 satisfactory, Your Honor. 18 THE COURT: You envision motions as 19 well? 20 MR. SCAROLA: Your Honor, the only 21 motion that I envision is the one I 22 mentioned to the Court, motion to compel 23 responses to punitive damage interrogatories 24 over the Fifth Amendment objections that 25 have been raised. Palm Beach Reporting Service, Inc. EFTA00801250  14 1 We believe -- I said interrogatories -- 2 I believe they are both interrogatories and 3 production requests; things like tax returns 4 that aren't protected by Fifth Amendment 5 privilege. 6 THE COURT: What about depositions? 7 Have you taken Mr. Epstein's deposition 8 already in this case? 9 MR. SCAROLA: We have attempted to take 10 Mr. Epstein's deposition on multiple 11 occasions. He is asserting Fifth Amendment. 12 THE COURT: That's what I'm presuming 13 is also going to be an issue as well. 14 MR. SCAROLA: I might mention that 15 Mr. Epstein has filed an affidavit in 16 support of his summary judgment motion, 17 which we believe needs to be stricken as a 18 consequence of his refusal to participate in 19 pretrial discovery by raising privilege 20 objections. So that will be an issue at the 21 summary judgment hearing, whether the Court 22 can consider an affidavit after Mr. Epstein 23 has declined to participate by answering 24 relevant and material questions during 25 discovery. Palm Beach Reporting Service, Inc. EFTA00801251  15 1 THE COURT: That's what I'm talking 2 about. We are going to need time. 3 Again, I don't want this discussion 4 today to suggest that you have to file anything. Again, it's just generic 6 discussion in the sense that when you are 7 dealing with a case, and you are trying to 8 control the docket, and trying to manage the 9 case from my standpoint, I have got to 10 anticipate certain things that are going to 11 be filed. I haven't seen that yet. 12 MS. HADDAD: Your Honor, as you may 13 recall, last time we were here you ordered 14 Mr. Scarola to -- and vice versa -- to 15 provide a witness list. Once we received 16 that, we have been actively trying to take 17 depositions and set depositions of their 18 witness. 19 It's not a situation in which we are 20 not preparing for a trial and gearing up. 21 We may have additional motions based upon 22 what these witnesses say. We just -- 23 unfortunately, Mr. Scarola has been in trial 24 and we have only received limited dates of 25 availability, pursuant to which to take Palm Beach Reporting Service, Inc. EFTA00801252  16 1 these depositions. So we are actively 2 trying to move the case forward. 3 THE COURT: All right. Well, I will 4 grant the motion. As I said, my thinking is 5 likely that we are going to be setting 6 aside -- try to set aside -- I am just 7 indicating during the calendar 8 MR. SCAROLA: Would you like us to 9 attend that calendar call, sir? 10 THE COURT: Yes. 11 I will fix this. I will have it sent 12 out today. My JA is gone. Hopefully, Judge 13 Rowe's JA will be able to assist us today. 14 - - - 15 (The above proceedings were 16 concluded at 9:09 III.) 17 18 19 20 21 22 23 24 25 Palm Beach Reporting Service, Inc. EFTA00801253  17 1 COURT CERTIFICATE 2 3 4 STATE OF FLORIDA ) : SS 5 COUNTY OF PALM BEACH ) 6 7 I, SONJA D. HALL, certify that I was 8 authorized to and did stenographically report the 9 foregoing proceedings and that the transcript is a 10 true record of my stenographic notes. 11 12 13 Dated this 6th day of September 2017. 14 15 16 SONJA D. HALL 17 18 19 20 21 22 23 24 25 Palm Beach Reporting Service, Inc. EFTA00801254