EFTA00788112.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 VOLUME I DATE TAKEN: Tuesday, October 3rd, 2017 TIME: 10:01 a.m. - 4:43 p.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. 561-471-2995 EFTA00788112  2 1 APPEARANCES: 2 For Bradley Edwards: 3 SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 4 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 5 By JACK SCAROLA, ESQUIRE By DAVID P. VITALE, JR. 6 7 For Bradley Edwards: 8 BURLINGTON & ROCKENBACH PA 444 W Railroad Avenue, Suite 350 9 West Palm Beach, FL 33401 By PHILIP MEAD BURLINGTON, ESQUIRE 10 11 For Jeffrey Epstein: 12 W. CHESTER BREWER, JR., P.A. 250 S. Australian Avenue, Suite 33401 13 West Palm Beach, FL 33401 By W. CHESTER BREWER, JR., P.A., ESQUIRE 14 15 For Jeffrey Epstein: 16 TONJA HADDAD, P.A. 315 S.E. 7th Street, Suite 301 17 Fort Lauderdale, FL 33301 By TONJA HADDAD COLEMAN, ESQUIRE 18 For Jeffrey Epstein: 19 ATTERBURY, GOLDBERGER & WEISS, P.A. 20 250 Australian Ave. South, Suite 1400 West Palm Beach, FL 33401 21 By JACK A. GOLDBERGER, ESQUIRE 22 For Jeffrey Epstein: 23 DARREN K. INDYKE, PLLC 575 Lexington Avenue 24 New York, NY 10022 By DARREN K. INDYKE, ESQUIRE 25 Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788113  3 1 THE COURT: We have various motions on 2 the Edwards counterclaim that was brought 3 against Mr. Epstein relative to the 4 remaining count of malicious prosecution. I have read as much as the materials 6 that someone can sit down and read for the 7 better part of five or six hours. I tried 8 to highlight as many of the provisions as I 9 thought were appropriate as possible. 10 Mr. Goldberger, I see that you are 11 here. I have not yet seen a motion to stay. 12 MR. GOLDBERGER: It's here, Your Honor. 13 It's ready to go. I am going to file it 14 today. I am going to file it this morning. 15 I will give a courtesy copy to all counsel 16 and for the court as we speak. 17 THE COURT: What I was going to say -- 18 Mr. Goldberger and Mr. Scarola, if I could 19 be heard on the subject is this. The motion 20 to stay, which you essentially explained the 21 purpose behind it -- at least as to most of 22 the motions that are scheduled for today 23 is not really germane to those issues as far 24 as the Court is concerned. 25 There may be some peripheral relevance Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788114  4 1 in that respect. But as far as my review of 2 the materials are concerned, it really 3 doesn't apply here today that I can really 4 see. So I don't know if you want to deal 6 with that issue first. 7 MR. GOLDBERGER: I agree with the Court 8 in large part that the motion to stay does 9 not necessarily impact some of the matters 10 here today, other than the motions in 11 limine, Your Honor. 12 Mr. Scarola and his team of lawyers are 13 trying everything they can to inject into 14 your case criminal investigations of 15 Mr. Epstein, civil lawsuits that have been 16 settled, all of which, if Your Honor is the 17 gatekeeper, allows those matters to come 18 into evidence, would very much impact our 19 motion to stay because he wants to go -- he 20 wants to dive headfirst into matters that 21 are a subject of the non-prosecution 22 agreement and other possible prosecutions of 23 Mr. Epstein. 24 So I do agree with the Court that many 25 of the matters can be heard today. But Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788115  5 1 anything that approaches or touches on 2 evidentiary matters as to what the Court may 3 allow into evidence on their cause of action 4 for malicious prosecution alleging that 5 Mr. Epstein did not have probable cause to 6 file a lawsuit against Mr. Edwards. 7 If they want to go on this fishing 8 expedition and put in front of the jury all 9 kinds of matters totally unrelated to the 10 cause of action, then, yes, the motion to 11 stay does need to be heard. 12 THE COURT: Thank you. 13 Mr. Scarola. 14 MR. SCAROLA: Your Honor, Jack Scarola, 15 David Vitale from Searcy, Denney, Scarola, 16 Barnhart and Shipley; and Mr. Phil 17 Burlington of Burlington and Rochenbach, on 18 behalf of Mr. Edwards in this matter. 19 As has been acknowledged, we have not 20 yet seen a motion to stay. It has not been 21 filed. It's hard for me to see how it could 22 possibly have any merit. But you and I are 23 both speculating in that regard, since we 24 have not seen a motion. 25 In light of the fact that the Court set Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788116  6 1 a deadline for filing motions in this 2 matter, and that deadline has long passed, I 3 suggest that we should proceed with 4 everything that is scheduled to be heard as 5 if no motion to stay existed, because no 6 motion to stay exists. 7 So we are ready to proceed. 8 THE COURT: That's fine. I think that, 9 again, without the filing for the motion to 10 stay and the terms and conditions of the 11 motion, as well as what the ultimate request 12 for relief may be, is unknown at this 13 juncture. 14 However, at the same time, there will 15 be arguments that are made relative to 16 motions in limine, that while they may touch 17 on what would be formally filed as a motion 18 to stay, maybe -- that being the 19 arguments -- relevant to the Court's 20 consideration of those specific items, 21 irrespective of the motion to stay, meaning, 22 for example, there's been some reference to 23 Mr. Epstein as a, quote, serial child 24 molester, end quote. That can be discussed, 25 in my respectful view, outside of a formal Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788117  7 1 motion to stay. 2 The one thing that I do want -- and I'm 3 sure it's in this three- or 4 three-and-a-half-foot proof of paper is the plea agreement, what Mr. Epstein 6 actually pled to. That would be of 7 assistance to me if it's tabbed somewhere or 8 if it's somewhere handy for someone to get 9 their hands on for me to see that. 10 MR. GOLDBERGER: When I send a courtesy 11 copy of my motion to stay, I will include a 12 copy as well. 13 THE COURT: If somebody has it handy, I 14 will need it during the proceeding, because 15 I want to see that -- because it's only 16 going to be material to some of the Court's 17 decision-making, as far as I'm concerned, in 18 how far we go with regard to the terminology 19 that's going to be used, what Mr. Epstein 20 pled to. 21 And obviously, the touchtone here and 22 malicious prosecution is obviously one 23 element -- one of the important ones as far 24 as malice the issues. 25 So we recognize that malice being one Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788118  8 1 of the primary element of the malicious 2 prosecution claim, what may have been in the 3 mindset of Mr. Epstein when he filed the 4 claim against Rothstein, Edwards and LM -- 5 initials being used only since she was 6 allegedly a minor at the time that the suit 7 was brought -- is of importance to the 8 Court. What was the motivation? What was 9 the theory? What was the intent? All of 10 these things do go to malice. 11 So, while I would love to be able to 12 try a case that is sanitized, both from the 13 acts of Rothstein and the Rothstein firm and 14 those who were involved in the Ponzi scheme 15 that Mr. Rothstein engaged in, as well as 16 sanitized as to a great deal of the 17 allegations as it relates to those claims 18 that Mr. Epstein settled pertaining to the 19 claims of sexual misconduct on the part of 20 Mr. Epstein I am not certain that we are 21 going to be able to get that far. 22 However, there will be limitations, I 23 can assure you, that the Court will 24 institute once I have been able to hear the 25 respective arguments of both sides. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788119  9 1 There have been concessions made by 2 both sides in their papers. There's a 3 modicum of evidence as it relates to these 4 issues that's likely going to be heard by the jury. 6 So, let's go ahead and proceed. What I 7 would like to do is proceed first with the 8 motion for summary judgment that was filed 9 by Mr. Edwards -- strike that -- by 10 Mr. Epstein -- excuse me -- as it relates to 11 Mr. Edwards' fourth amended counterclaim. 12 So let's start there. 13 Thank you both, gentlemen. 14 MR. GOLDBERGER: Your Honor, may I take 15 my time at the podium just to address some 16 issues that's been festering a little bit? 17 I don't know if the Court wants to hear from 18 me. 19 THE COURT: Let's wait, Mr. Goldberger. 20 I promise if those matters are still 21 festering at the conclusion of today's 22 hearing, I would be glad to hear from you. 23 I would like to get into the substantive 24 matters if we can. 25 MR. GOLDBERGER: Thank you, Your Honor. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788120  10 1 MR. SCAROLA: With Your Honor's 2 permission -- 3 MR. GOLDBERGER: I apologize, 4 Mr. Scarola, but we do have a motion for enlargement of time that is pending, and we 6 would like to be heard on that, at least, 7 prior to you hearing the summary judgment 8 motion. 9 I apologize, Mr. Scarola, for jumping 10 in. 11 THE COURT: Okay, the motion of 12 enlargement of time relative to the motion 13 filed on September 25th, 2017? 14 What was the title of the motion? 15 MR. GOLDBERGER: It's Ms. Haddad 16 Coleman's motion that was filed. I am going 17 to let her argue it, Your Honor. But it 18 addresses all issues that we have not had 19 sufficient time for lots of reasons to be 20 prepared to argue the motion for summary 21 judgment today. 22 Your Honor will recall at the hearing 23 of September 15th when I was on vacation 24 there were two motions that were pending at 25 the time, and the Court said we are going to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788121  11 1 be ready to go on those two motions. 2 We received a barrage of motions 3 subsequent to that time filed by Mr. Scarola 4 and his team of lawyers. We have three 5 lawyers. One is a criminal defense lawyer 6 and two sole practitioners who are working 7 on this case, and we have a client who has 8 been devastated by the hurricane, whose home 9 is gone, we cannot communicate with, so the 10 motion for enlargement is based on all of 11 the matters I'm asking Ms. Haddad Coleman to 12 address. 13 THE COURT: I saw this reference to a 14 motion for enlargement of time, the motion 15 filed on September 25th, and I didn't see 16 anything else. 17 Which motion are you talking about? 18 Again, I didn't go back and try to 19 cross-reference dates with material here. 20 It is not a easy task for one person to do. 21 MS. HADDAD COLEMAN: May I approach, 22 Judge? I have an extra copy. 23 The motion is very short, the basis for 24 which is clearly delineated within it. 25 As the Court's aware, we had a hearing Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788122  12 1 on September 15 to get a hearing date on our 2 motion for summary judgment, at which time 3 you had us agree to file certain motions by 4 September 25th and our responses to those motions to be filed by September 28th. 6 At the time of this hearing, Judge -- 7 again, I am a sole practitioner. I reside 8 in Broward County. My office is in Broward 9 County. I did not regain power, Internet or 10 any other access until late after hours 11 Monday, September 18th, 2017. 12 As the Court is also aware, at the last 13 hearing at which the Court ordered these 14 deadlines, Mr. Brewer -- who is also a sole 15 practitioner, who is my civil co-counsel in 16 this matter -- indicated to the court in the 17 transcript that he was going to be gone the 18 entire week of September 25th. 19 We were able to file motions that we 20 felt the Court had discussed at the hearing 21 and wanted to hear, which were filed 22 previously, in this case being the motion in 23 limine. The motion for summary judgment had 24 been filed in June. And then three motions 25 directed at discovery for which we were Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788123  13 1 compelling better responses from 2 Mr. Edwards, which again, had been filed in 3 the past, because the Court may remember, 4 this case was stayed for three years while 5 it was on appeal -- from 2014 until June of 6 this year. 7 As of September 8th when Hurricane Irma 8 hit the Virgin Islands -- Mr. Epstein 9 resides in the Virgin Islands -- I have 10 little to no ability to communicate with him 11 since that date, and as such, he has been 12 unable to really participate in anything 13 dealing with the motions that are pending 14 for today. 15 And on September 25th, we received a 16 number of substantive motions from 17 Mr. Scarola. And in addition, we've 18 received motions directed at our motion for 19 summary judgment. And then in addition to 20 that, on the 28th, received replies, 21 responses, motions to strike and things of 22 that nature, just related to the summary 23 judgment alone, never mind discovery issues, 24 motions in limine and things of that nature 25 Judge. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788124  14 1 It was just me. And in those three 2 days I also had one arbitration, one 3 mediation, five depositions scheduled 4 previously. And Yom Kippur and Rosh Hashanah fell within those dates which you 6 gave us to respond. 7 We are not trying to delay, Judge. We 8 are ready to go forward. As the Court 9 knows, the Florida Supreme Court finished 10 with this case mid-June. Within a week and 11 a half we had our motion for summary 12 judgment filed. We have been actively 13 pursuing discovery. This is not for a delay 14 tactic at all, Your Honor. 15 Many of Mr. Scarola's motions, 16 especially those germane to discovery 17 issues -- and you said that you don't think 18 anything will be impacted by the stay 19 here -- my client's right to attorney-client 20 privilege and things like that are the crux 21 of many of these motions. And with little 22 to no input from Mr. Epstein, or any ability 23 for him to access his files or even 24 communicate with us regarding these motions, 25 I am ineffective to proceed. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788125  15 1 I haven't had a chance to go forward 2 with him in the three-day turnaround time on 3 these motions. It's left me in an 4 uncompromising position where I either have to disobey an order of this court or provide 6 ineffective assistance to my client. 7 Basically right now as we stand on many 8 of these motions that Mr. Scarola would like 9 heard today, as you have noticed by the 10 notice of hearing he filed for today, I have 11 little to no ability to really get into the 12 issues with my client to discuss what is 13 needed to go forward, much less prepare for 14 them, in light of the very short turnaround 15 time and the holidays that fell within those 16 dates. 17 THE COURT: Okay. Mr. Scarola. Thank 18 you, Ms. Haddad Coleman. 19 MR. SCAROLA: Your Honor, with regard 20 to the hearing at which Mr. Edwards was 21 represented by able counsel, at which an 22 agreement was reached before the Court that 23 a deadline would be established of 24 September 25 to file pretrial motions, and 25 that both sides would have three days after Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788126  16 1 September 25 in which to file responses, the 2 Court expressly stated there would be no 3 replies that would be filed, and that the 4 issues joined by those motions filed by September 28th and responded to -- excuse me 6 by September 25 and responded to three days 7 later, by September 28th, would be heard 8 today. 9 This case has been pending since 2009, 10 and none of the issues that are raised in 11 any of the matters pending before Your Honor 12 are issues that come as a surprise to 13 anyone. 14 Indeed, the interrelationship between 15 the assertion of Fifth Amendment rights and 16 the ability to proceed with the prosecution 17 and defense of claims on Mr. Epstein's part 18 has been a primary focus of determinations 19 to be made by the Court since the filing of 20 our motion for summary judgment on 21 Mr. Epstein's claims against Mr. Edwards, 22 which were set for hearing. 23 And on the eve of that hearing, with no 24 response filed to that motion for summary 25 judgment -- a primary focus of which was you Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788127  17 1 cannot use the Fifth Amendment as both a 2 sword and a shield -- you cannot file a 3 claim for RICO violations for criminal 4 actions arising out -- excuse me -- for 5 civil relief arising out of criminal 6 actions, for fraud, for abuse of process and 7 malicious prosecution, knowing that you 8 intend to hide behind the Fifth Amendment 9 with regard to issues central to those 10 claims. 11 Those issues were raised years ago and 12 they have continuously arisen at every stage 13 of this proceeding when discovery was sought 14 from Mr. Epstein. And knowing about those 15 problems he has chosen to hide behind the 16 Fifth Amendment. 17 So there's nothing new here. And quite 18 frankly, I am amazed that opposing counsel 19 keeps referring to Mr. Scarola's team of 20 lawyers when Your Honor is well aware that 21 there have been many, many, many lawyers 22 involved in the defense of Mr. Epstein for 23 many years. And Mr. Epstein has all of the 24 resources necessary to be able to respond in 25 a timely fashion to the legal issues present Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788128  18 1 in this case. 2 These are legal issues. They don't 3 require further testimony from Mr. Epstein. 4 And the excuse that there was a 5 hurricane that swept through the Virgin 6 Islands many weeks ago when allegedly 7 Mr. Epstein's home was destroyed, and 8 Mr. Epstein had every ability to come to 9 Palm Beach County, Florida, to consult with 10 his lawyers, if they felt that was 11 necessary, those assertions, in the absence 12 of any supporting affidavit, any 13 presentation of any evidence whatsoever, 14 ought not to sway this court from abiding by 15 the terms of an agreement that was entered 16 into with knowledge of all of those things. 17 That hurricane didn't happen between 18 the time that Your Honor held the last 19 hearing in this case and September 25th. It 20 did not occur between September 25th and 21 September 28th. All of those factors that 22 they are now complaining of existed at the 23 time that that agreement was entered into. 24 THE COURT: Thank you. 25 MR. SCAROLA: Thank you, sir. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788129  19 1 MR. BREWER: Your Honor, may I respond 2 since it's been stated that I agreed -- 3 THE COURT: Sure. 4 Who else is sitting with you? 5 MR. GOLDBERGER: Your Honor, this is 6 Mr. Darren Indyke, who is in-house counsel 7 to Mr. Epstein. 8 THE COURT: Darren? 9 MR. GOLDBERGER: Indyke, I-N-D-Y-K-E. 10 THE COURT: Thank you. Welcome. 11 MR. BREWER: Your Honor, I want to 12 speak to the statement agreement inchoate. 13 When we appeared before you on September the 14 15th -- that was the date of the hearing 15 we had asked the Court to give us a date to 16 hear our motion for summary judgment. We 17 appeared at calendar call for that 18 discussion. 19 At that time there was pending our 20 motion for summary judgment. There was a 21 motion that was filed by Mr. Scarola that 22 went to net worth of Mr. Epstein, and it 23 merely said objections not well taken, which 24 is a nullity of the pleading. 25 And the night before -- you might Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788130  20 1 remember the colloquy where Mr. Scarola said 2 that he was going to be filing a motion to 3 strike. And he, at the time, thought it 4 hadn't been filed yet, but in fact I complimented his assistant and said, No, she 6 did get it in late yesterday afternoon. It 7 was filed late on the 14th of September. 8 That's what was pending. 9 We discussed with the Court the fact 10 that we were preparing a motion in limine. 11 It goes to many of the issues, really, at 12 the heart of this thing. The statement was 13 made to the Court that we thought that we 14 could get that motion in -- we were 15 preparing and thought we could get it in the 16 next week. 17 THE COURT: Which was done? 18 MR. BREWER: Which was done. Since 19 that time -- and I counted -- there had been 20 21 motions in other matters filed, which we 21 had no idea about. And to sit there and 22 say, Oh, we agree to this deluge of 23 discovery and motions is just not correct. 24 THE COURT: I really wasn't 25 contemplating a significant number of Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788131  21 1 motions to be filed on the 25th of 2 September. I used that as a deadline so 3 that anything could be cleaned up and 4 prepared and proceed accordingly. 5 So, a couple of things -- you can have 6 a seat, Mr. Brewer. Thank you very much, 7 sir. 8 Number one, I don't want to be accused 9 of being insensitive to those who have 10 suffered through the recent storms, nor do I 11 want to be accused of being insensitive to 12 the fact that Jewish holidays fell within 13 the time period at issue. But at the same 14 time, the information, at least that is 15 contained in the documents that I have 16 reviewed, for example, reflect Mr. Epstein's 17 access to airplanes. There's been no 18 suggestion -- I don't know one way or the 19 other whether or not there is access to 20 airplanes at this point in time. 21 Again, I agree with Mr. Scarola there 22 was no -- has been no factual recitation in 23 the form of an affidavit or declaration that 24 was submitted to support any of these 25 opinions. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788132  22 1 Also, while I eminently respect choice 2 of counsel, at the same time there has not 3 been any demonstration that, for whatever 4 reason, Mr. Epstein does not have the wherewithal economically to be able to have 6 sufficient representatives so as to fortify 7 lead counsel in the preparation and defense 8 of the -- in preparation of any written 9 materials or in the defense of the subject 10 claim. 11 So again, while I have personal empathy 12 for anyone who is a sole practitioner, that 13 is not my choice. That is the choice of a 14 sophisticated business person in the form of 15 Mr. Epstein, who again, to my knowledge, and 16 totally from what I have read in the 17 materials and his agreement, at least at one 18 point in time, to stipulate to a significant 19 net worth. 20 There is no suggestion of economic 21 hardship so as to limit his choice of 22 lawyers or law firms, lawyers or law firms 23 that have sufficient resources to be able to 24 respond instantaneously to many of the 25 arguments that were raised by way of the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788133  23 1 motions filed on September 25th. 2 However, with that said, because we 3 really weren't anticipating -- I wasn't 4 anticipating, I should say -- multiple motions being filed at the very end of the 6 deadline, we will take those on a 7 matter-by-matter basis. And if I find that 8 they are not purely legal in nature and 9 would require some type of additional 10 factual development, then I will take that 11 into consideration. 12 The reason I set this a couple of 13 months before trial was to try my best to be 14 able to streamline between now and then what 15 may be necessary and properly address any 16 pretrial issues so that we can hopefully 17 resolve as many of those that we can before 18 the commencement of trial and not during 19 trial, which is when appellate courts have 20 been loathed to allow the trial courts to 21 take valuable time away from those who are 22 mostly volunteering their time -- that being 23 the jury -- and engaging in lengthy motion 24 practice during the time that the jury is 25 seated. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788134  24 1 As I said, I would like to begin with 2 Plaintiff/Counter-Defendant Epstein's motion 3 for summary judgment on Defendant/ 4 Counter-Plaintiff Edwards' fourth amended counterclaim. Let's proceed. 6 MR. SCAROLA: Your Honor, the first 7 issue raised with regard to that motion is 8 the argument that that motion is precluded 9 by virtue of collateral estoppel. And 10 Mr. Burlington res judicata -- excuse me 11 Mr. Burlington is here to address that. 12 If it's easier for the Court, I have an 13 extra copy of the motion that I can hand to 14 Your Honor. 15 THE COURT: Okay. Thank you. 16 MS. HADDAD COLEMAN: Your Honor, just 17 for the record, again, that motion from 18 Mr. Burlington was filed on the 28th, and 19 our motion for summary judgment was filed 20 June 30th. And the other two motions 21 directed at our motion for summary 22 judgment -- one of which is to strike 23 Mr. Epstein's affidavit, and another one is 24 in opposition -- again, we haven't had time 25 to go over or prepare for. These are Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788135  25 1 brand-new arguments that -- 2 THE COURT: I wouldn't expect you to. 3 It was actually filed on the 25th, not on 4 the 28th, but I haven't seen it. 5 MR. SCAROLA: Your Honor, that is in 6 fact, a motion to which a response has been 7 filed. 8 I can hand that to Your Honor as well, 9 if you would like. 10 THE COURT: Sure. That's fine. Thank 11 you. 12 MR. SCAROLA: Here you go, sir. I am 13 not sure what the objection is, since this 14 is a motion filed on the 25th. It was 15 responded to on the 28th, so it would appear 16 that it is ready to be argued today. 17 THE COURT: I have no problem. It is 18 simple, so let's proceed. 19 MS. HADDAD COLEMAN: Judge, I am just 20 trying to find it. I apologize. There's so 21 many filed. 22 THE COURT: Whenever you're ready step 23 up to the podium please. Thanks. 24 I would rather first hear the substance 25 of the motion, then we will listen to the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788136  26 1 motion to strike. 2 MS. HADDAD COLEMAN: I'm sorry? 3 THE COURT: I would like to hear from 4 you first on the substantive aspects of the motion, then I will listen to the motion to 6 strike. I believe the counter-argument, if 7 you will, or the arguments to defeat the 8 motion are partly substantive, partly 9 procedural. 10 MR. SCAROLA: Your Honor, in case the 11 Court is keeping track of these, the motion 12 for summary judgment was responded to by 13 Mr. Burlington in his motion that raises a 14 procedural issue with regard to res 15 judicata. 16 There's also a motion to strike 17 Mr. Epstein's affidavit, which was the 18 primary support of the motion for summary 19 judgment, and a second independent response 20 in opposition to the motion for summary 21 judgment. They are all in this group. 22 THE COURT: The motion -- strike that. 23 The response that you filed in 24 opposition was the one I concentrated on 25 during my review of the motion. I tried to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788137  27 1 match both up to the other. I now see that 2 I did have the motion from Mr. Burlington 3 and the response from Ms. Haddad Coleman. 4 MS. HADDAD COLEMAN: Judge, the motion to strike the affidavit, the June 30th 6 affidavit to summary judgment, that motion 7 filed by Mr. Scarola -- again within this 8 time frame, which we were forced to operate 9 in -- is solely based on the Fifth 10 Amendment. It's a huge argument about the 11 Fifth Amendment, Judge. And I am about a 12 third of the way complete with it, but it 13 was requiring me to go through the 14 deposition of Mr. Epstein. And I can submit 15 and proffer to the Court that I'm only up to 16 page 33 of Mr. Epstein's deposition. But he 17 substantively answered all questions that 18 were related to this lawsuit. 19 THE COURT: Let's go ahead and proceed 20 with the substance of the motion and we will 21 go from there, please. 22 MS. HADDAD COLEMAN: Good morning, 23 Judge. Jeffrey Epstein's motion for summary 24 judgment is based on a very simple issue 25 that was not addressed by this Court in a Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788138  28 1 previous motion or on the appellate level, 2 and that is the issue of probable cause. 3 As this court is aware, there are 4 several elements that must be proven by Mr. Edwards in order for him to prevail on a 6 case of malicious prosecution. So what is 7 relevant and germane to this issue of 8 probable cause is that it's a very low 9 threshold, and it's very easily satisfied by 10 Mr. Epstein. 11 And Mr. Epstein had probable cause at 12 the time he filed his complaint against 13 Mr. Edwards. 14 Contrary to Mr. Edwards' assertions 15 that everything that has been laid out in 16 this case, since 2009, Mr. Epstein filed 17 suit against Mr. Edwards, Scott Rothstein 18 and LM, based on the undeniable and 19 inconvertible facts of what was transpiring 20 at RRA specifically with what will be 21 referenced as the Epstein cases during the 22 time in question. 23 As this Court and everyone in this room 24 is aware, in November 2009 it became 25 national news that Scott Rothstein was the Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788139  29 1 named partner of Rothstein, Rosenfeldt, 2 Adler -- a firm which Brad Edwards, at the 3 time, was part of -- in funding the largest 4 Ponzi scheme in history. It was also known -- Judge, if you look 6 through our motion -- I just want to point 7 out to the Court and put on the record every 8 single undisputed fact to which we refer -- 9 there is a citation -- and the documentation 10 is provided to you -- that supports these 11 undisputed facts. It is not just the 12 affidavit of Jeffrey Epstein, although, that 13 is also listed herein. 14 Part of that Ponzi scheme is that 15 Rothstein and his partners and other 16 coconspirators who were not determined at 17 the time this lawsuit was filed, or at the 18 time the federal government became involved 19 to prosecute Mr. Rothstein, that they were 20 defrauding investors into purchasing fake 21 settlement agreements or inflated settlement 22 agreements that were being litigated with 23 cases by RRA. One of those cases, 24 Mr. Epstein and the rest of the United 25 States became aware, were the cases that Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788140  30 1 were being pursued by Mr. Edwards and RRA 2 against Mr. Epstein. 3 In December 2009, the federal 4 government filed a 66-page -- I'm sorry -- 36-page information against Scott Rothstein 6 stating that RRA, which Edwards was a 7 partner at that time, was a racketeering 8 enterprise, and that Rothstein, his partners 9 and other named coconspirators were 10 committing crimes in order to defraud 11 investors and further their Ponzi scheme. 12 It is noteworthy to mention, Judge, 13 that subsequent to filing this motion, we 14 did file an amended supplemental list, in 15 which we've added that earlier last week -- 16 the federal government has come out and 17 stated that they are seeking to withdraw 18 their recommendation that Mr. Rothstein 19 receive a reduced sentence because he has 20 lied to the government. 21 We feel that also is important and goes 22 to the crux of what Mr. Rothstein did and 23 continued to do, even after he was caught. 24 It is important to know, Judge, through 25 these facts, if you look through the motion Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788141  31 1 that the unnamed conspirators of 2 Mr. Rothstein were people who worked with 3 Mr. Rothstein, they were being investigated 4 by the Florida Bar as well as by the federal government. 6 There was testimony given that these 7 investors and these -- and there are 8 citations to all this testimony in which 9 they were given the Epstein cases to look 10 at. Scott Rothstein and his other unnamed 11 coconspirators brought to the attention of 12 these investors the Epstein cases and 13 created outrageous allegations pursuant to 14 which they stated that because Mr. Epstein 15 had all of this money they could get the 16 defendant -- in this case, Mr. Epstein -- to 17 settle for substantial sums of money. 18 Scott Rothstein admitted to all this, 19 and was sentence to 50 years, and he's 20 currently serving that sentence. 21 Mr. Epstein also became aware during 22 that time that news reports that Rothstein 23 had been disbarred and that the Florida Bar 24 was investigating at least half of the 25 attorneys employed by RRA in connection with Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788142  32 1 this Ponzi scheme. 2 On November 20, 2009, the law firm of 3 Conrad Scherer initiated a lawsuit against 4 Rothstein and others entitled Razorback Funding, again, a copy of which is provided 6 to the Court and is relied upon as 7 undisputed facts related to the summary 8 judgment motion in which the Epstein cases 9 and the use of the Epstein cases to defraud 10 the investors is discussed at length. 11 Judge, in our motions on pages five 12 through seven, specific sections of the 13 Razorback complaint is cited to the Court. 14 It states that purported settlements, albeit 15 fraudulent, were based on actual cases being 16 handled by RRA. 17 For example, one of the settlements 18 involved was based upon facts surrounding 19 Jeffrey Epstein, the infamous billionaire 20 financier. Representatives of D3 -- which 21 was the investment company -- were offered 22 the opportunity to invest in pre-suit $30 23 million court settlements against Epstein 24 involving different underaged female 25 plaintiffs, cases that were being prosecuted Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788143  33 1 by Brad Edwards, while a partner at RRA. 2 In addition to that, Judge, at this 3 time in question, which Mr. Edwards worked 4 at RRA -- was a partner there from April to 5 November 2009, Judge. A very small period 6 of time. 7 There were several filings in federal 8 court which raised suspensions of 9 Mr. Epstein, his attorneys and the 10 government. 11 For example, there were some filings 12 about dignitaries and other parties being on 13 Mr. Epstein's planes. One of the plaintiffs 14 for whom Mr. Edwards was prosecuting cases 15 against Edwards (sic) had ever made 16 allegations such as that. 17 Further, according to the defrauding of 18 investors, the Epstein cases -- there's 19 several discovery practices and motions that 20 were filed to salaciously sexually charge 21 the nature of the facts and make it 22 explosive that will truly convince investors 23 that Epstein would in fact be quick to 24 settle these cases. 25 Also during that time, Judge, what Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788144  34 1 Mr. Edwards did in the federal cases 2 personally as legal counsel or lead counsel 3 on those Epstein cases -- again, as a 4 partner of RRA -- there was a filing of a 5 federal claim for LM, who was a plaintiff in 6 this case filed in federal court against 7 Mr. Epstein based on the same exact 8 allegations of facts and circumstances that 9 were filed in the state court, but then 10 salaciously embellish some of the facts. 11 And again, this complaint was never 12 served on Mr. Epstein, but it was shown to 13 the investors, and there is testimony to 14 that fact. 15 Then Mr. Edwards filed a motion. It 16 was a motion asking that the court -- Judge 17 Marra -- federal district court -- to enter 18 a bond -- enter an order requiring 19 Mr. Epstein to post a multi-million-dollar 20 bond. Judge Marra threw that out, stating 21 that there was no basis in fact. 22 Judge, that was in Doe versus Epstein, 23 08-80893 in which the Court said there was 24 no basis in fact for it. 25 This motion went through such detail Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788145  35 1 delineating the financial net worth of 2 Mr. Epstein. And again, this was solely 3 that very small time period during which 4 Mr. Edwards was a partner RRA, and during 5 which the Epstein cases were being used to 6 defraud investors. 7 This is the information known to 8 Mr. Epstein at the time he chose to file 9 suit. Contrary to what Mr. Edwards is 10 trying to do, and the information he tries 11 to bring forth in this Court, if the Court 12 looks at the initial complaint that 13 Mr. Epstein filed, it clearly delineates 14 solely these facts upon which he relied, as 15 does Mr. Epstein's deposition testimony -- 16 which we were prepared again in response in 17 opposition to Mr. Scarola's motion to 18 provide to this court. These facts show 19 what was in Mr. Epstein's mind at the time 20 he filed this suit, at the time he sought 21 counsel, attorneys to file this suit on his 22 behalf. 23 He testified he read about this case in 24 the Daily News. His affidavit delineates 25 all the facts upon which he replied. And Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788146  36 1 even if the Court didn't look to 2 Mr. Epstein's affidavit, which we submit is 3 consistent with his deposition testimony, 4 his response to certain discovery requests, the undisputed facts available at the time 6 he filed suit, the indictment of Scott 7 Rothstein, every report in which it's 8 discussed what Mr. Edwards and RRA were 9 doing in these Epstein cases, as well as the 10 filings in the federal court, and the 11 Razorback complaint itself, which was one of 12 the largest settlements in Broward County, 13 and it did, in fact, was one of the things 14 upon which Mr. Rothstein relies in trying to 15 get his sentence reduced, was if those 16 investors were able to get all of their 17 money back. 18 The Razorback complaint was a 19 successful suit. And at the time 20 Mr. Epstein filed the suit, that was the 21 case that was filled just before he did. 22 THE COURT: What I was going to ask, 23 though, is remember that this case was filed 24 not only against Mr. Rothstein, but against 25 Mr. Edwards. The focus really has to be on Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788147  37 1 the probable cause issue pertaining to 2 Mr. Edwards. Perhaps that's a reason why 3 Mr. Rothstein did not counterclaim or filed 4 his own malicious prosecution case, was the focus has to be on Mr. Edwards. 6 MS. HADDAD COLEMAN: Yes, Judge. And 7 at the time Mr. Epstein filed suit against 8 Mr. Edwards, Mr. Edwards was the lead 9 counsel of these cases. Mr. Edwards signed 10 every pleading. Mr. Edwards, pursuant to 11 Florida Bar rules and his ethical duties as 12 a lawyer, is charged with knowledge of what 13 is transpiring in his cases. 14 Mr. Edwards, during this relevant time 15 period, was prosecuting these cases. 16 Mr. Edwards engaged in discovery practices. 17 Mr. Edwards signed pleading practices. 18 Mr. Edwards engaged in these acts. 19 Judge, it's important to note, again, 20 it's very easy to sit here and Monday- 21 morning quarterback in 2017. 22 In 2009, and as late as 2012, the 23 federal government was still saying, 24 unknown, unnamed, unindicted coconspirators. 25 Judge, even the federal government was Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00788148  38 1 unsure who was involved at that time. 2 Again, it's very easy to sit back later 3 and say Mr. Edwards wasn't involved. But 4 the information available to Mr. Epstein at 5 the time -- which is solely the time period 6 germane to when he filed suit -- was that 7 Mr. Edwards' name appeared on all these 8 pleadings. Mr. Edwards was engaging in 9 discovery. Mr. Edwards was seeking to 10 depose David Copperfield and Donald Trump 11 and Bill Clinton when his clients had never