EFTA00805340.pdf

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 50-2009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, v. SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiff. AGREED MEDIATION CONFIDENTIALITY ORDER THIS CAUSE came before the Court upon the agreement of (1) Bradley J. Edwards ("Edwards"), (2) Jeffrey Epstein ("Epstein"), (3) Fowler White Burnett, P.A. ("Fowler White") and its insurer, (4) Intervenors Jane Doe, L.M. and E.W. (collectively, "Intervenors"), and (5) Farmer Jaffe Weissing Edwards Fistos and Lehrman ("Farmer Jaffe") (collectively, the "Mediation Participants"), to participate in mediation subject to this Agreed Mediation Confidentiality Order. The Court, hereby ORDERS AND ADJUDGES as follows: 1. Non-parties Fowler White and Farmer Jaffe consent to the jurisdiction of this Court solely for purposes of participating in the mediation. 2. Pursuant to Florida Rule of Civil Procedure 1.720, Edwards, Epstein, the Intervenors and representatives from Fowler White and Farmer Jaffe who have the full authority to settle without further consultation shall appear at the mediation in person. Furthermore, a representative of Fowler White's insurance carrier who has full authority to settle in an amount up to its policy limits without further consultation shall appear at the mediation in person. EFTA00805340 Jeffrey Epstein v. Scott Rothstein and Bradley J. Edwards 15th Judicial Circuit Case No. 2009CA040800XXXXMBAG Agreed Mediation Confidentiality Order Page 2 3. The Mediation Participants shall each file a Certification of Authority ten days in advance of the mediation identifying who will appear at the mediation conference and confirming the person's settlement authority in accordance with Florida Rule of Civil Procedure 1.720(e). 4. The mediation proceeding is confidential and privileged as settlement negotiations. All statements made during the course of the mediation are privileged settlement discussions, are made without prejudice to any Mediation Participant's legal position and are not discoverable or admissible for any purpose in any legal or administrative proceeding whatsoever. 5. Florida law applies and governs the mediation including, but not limited to, Chapter 44, Florida Statutes, and the following specific confidentiality provisions: a. Florida Statute Section 44.403: 44.403 Mediation Confidentiality and Privilege Act; definitions.-As used in ss. 44.401-44.406, the term: (1) "Mediation communication" means an oral or written statement, or nonverbal conduct intended to make an assertion, by or to a mediation participant made during the course of a mediation, or prior to mediation if made in furtherance of a mediation. The commission of a crime during a mediation is not a mediation communication. (2) "Mediation participant" means a mediation party or a person who attends a mediation in person or by telephone, videoconference, or other electronic means. (3) "Mediation party" or "party" means a person participating directly, or through a designated representative, in a mediation and a person who: (a) Is a named party; (b) Is a real party in interest; or EFTA00805341 Jeffrey Epstein v. Scott Rothstein and Bradley J. Edwards 15th Judicial Circuit Case No. 2009CA040800XXXXMBAG Agreed Mediation Confidentiality Order Page 3 (c) Would be a named party or real party in interest if an action relating to the subject matter of the mediation were brought in a court of law. (4) "Mediator" means a neutral, impartial third person who facilitates the mediation process. The mediator's role is to reduce obstacles to communication, assist in identifying issues, explore alternatives, and otherwise facilitate voluntary agreements to resolve disputes, without prescribing what the resolution must be. (5) "Subsequent proceeding" means an adjudicative process that follows a mediation, including related discovery. b. Florida Statute Section 44.405(1) and (21: 44.405 Confidentiality; privilege; exceptions.— (1) Except as provided in this section, all mediation communications shall be confidential. A mediation participant shall not disclose a mediation communication to a person other than another mediation participant or a participant's counsel. A violation of this section may be remedied as provided by s. 44.406. If the mediation is court ordered, a violation of this section may also subject the mediation participant to sanctions by the court, including, but not limited to, costs, attorney's fees, and mediator's fees. (2) A mediation party has a privilege to refuse to testify and to prevent any other person from testifying in a subsequent proceeding regarding mediation communications. c. Florida Statute Section 44.406: 44.406 Confidentiality; civil remedies.— (1) Any mediation participant who knowingly and willfully discloses a mediation communication in violation of s. 44.405 shall, upon application by any party to a court of competent jurisdiction, be subject to remedies, including: (a) Equitable relief. (b) Compensatory damages. EFTA00805342 Jay Epstein v. Scott Rothstein and Bradley J. Edwards 15th Judicial Circuit Case No. 2009CA040800XXXXMBAG Agreed Mediation Confidentiality Order Page 4 (c) Attorney's fees, mediator's fees, and costs incurred in the mediation proceeding. (d) Reasonable attorney's fees and costs incurred in the application for remedies under this section. (2) Notwithstanding any other law, an application for relief filed under this section may not be commenced later than 2 years after the date on which the party had a reasonable opportunity to discover the breach of confidentiality, but in no case more than 4 years after the date of the breach. (3) A mediation participant shall not be subject to a civil action under this section for lawful compliance with the provisions of s. 119.07. 6. The mediation is being conducted in both this action (Jeffrey Epstein v. Scott Rothstein and Bradley J. Edwards, 15th Judicial Circuit Case No. 50-2009-CA- 040800XXXXMBAG) and the show cause proceedings (In re Rothstein Rosenfeldt Adler, P.A., U.S. Bankruptcy Court, Southern District of Florida, Case No. 09-34791-RBR) but will also address Epstein's potential claims against Fowler White. 7. For the limited purpose of the mediation, Epstein's 47 trial exhibits (the "47 e- mails") that Edwards claims are privileged and are currently under seal may be unsealed at the mediation and shown by Epstein's attorneys to the mediator and Fowler White's attorneys. Edwards' counsel shall bring Edwards' copy of the 47 e-mails to the mediation for this limited purpose. 8. The use of the 47 e-mails during mediation will not constitute an additional argument of a waiver by Epstein of any privilege claimed by Edwards, Farmer Jaffe or the EFTA00805343 Jeffrey Epstein v. Scott Rothstein and Bradley J. Edwards 15th Judicial Circuit Case No. 2009CA040800XXXXMBAG Agreed Mediation Confidentiality Order Page 5 Intervenors. However, this does not vitiate or limit Epstein's existing waiver arguments, which are preserved pending further rulings of this Court. DONE AND ORDERED in West Palm Beach, Palm Beach County, Florida this day of August, 2018. THE HONORABLE DONALD W. HAFELE CIRCUIT COURT JUDGE SERVICE LIST Jack Scarola Philip M. Burlington Karen E. Terry Nichole J. Segal David P. Vitale, Jr. Burlington & Rockenbach, P.A. Searcy, Denny, Scarola, Barnhart & Shipley, P.A. Courthouse Commons, Suite 350 2139 Palm Beach Lakes Boulevard 444 West Railroad Avenue West Palm Beach, FL 33409 West Palm Beach, FL 33401 Co-Counselfor Defendant/Counter- PlaintiffBradleyJ. Edwards Co-Counselfor Defendant/Counter-Plaintiff Bradley J. Edwards Bradley J. Edwards Marc S. Nurik Edwards Pottinger LLC Law Offices of Marc S. Nurik 425 N. Andrews Avenue, Suite 2 One E. Broward Boulevard, Suite 700 Fort Lauderdale, FL 33301-3268 Ft. Lauderdale, FL 33301 Co-Counselfor Defendant1Counter-Plaintiff Counselfor Defendant Scott Rothstein Bradley J. Edwards EFTA00805344 Jeffrey Epstein v. Scott Rothstein and Bradley J. Edwards 15th Judicial Circuit Case No. 2009CA040800XXXXMBAG Agreed Mediation Confidentiality Order Page 6 Jack A. Goldberger Paul Cassell Atterbury, Goldberger & Weiss, P.A. 383 S. University 250 Australian Avenue S., Suite 1400 Salt Lake City, UT 84112-0730 West Palm Beach. FL 33401 MOW Co-Counselfor Plaintiff/Counter-Defendant Limited Intervenor Co-Counselfor L.M., E.W. and Jane Doe Jeffrey Epstein Scott J. Link Jay Howell Kara Berard Rockenbach Jay Howell & Associates Link & Rockenbach, PA 644 Cesery Blvd., Suite 250 1555 Palm Beach Lakes Blvd., Suite 930 Jacksonville, FL 32211 West Palm Beach, FL 33401 Limited Intervenor a -Counselfor L.M., E.W. and Jane Doe Trial Counselfor Plaintiff/Counter-Defendant Jeffrey Epstein Joseph Ianno, Jr. Carlton Fields Jorden Burt, P.A. 525 Okeechobee Blvd., Suite 1200 West Palm Beach, FL 33401 Counselfor Fowler White Burnett, P.A. 2084119 EFTA00805345