gov.uscourts.nysd.447706.1218.37.pdf

Case 1:15-cv-07433-LAP Document 1218-37 Filed 07/15/21 Page 1 of 9 McCAWLEY DECLARATION EXHIBIT 16 (Filed Under Seal)  Case 1:15-cv-07433-LAP Document 1218-37 Filed 07/15/21 Page 2 of 9 Filing # 35619897 E-Filed 12/16/2015 02:53:37 PM IN THE CIRCUIT COURT OF THE 17th JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CIVIL DIVISION BRADLEY J. EDWARDS, and CASE NO. CACE 15-000072 PAUL G. CASSELL, Plaintiffs, V. ALAN DERSHOWITZ, Defendant. MOTION TO STRIKE AND FOR SANCTIONS Non-Party Virginia Roberts, by and through undersigned counsel, hereby moves for this Court to enter sanctions against Defendant, Alan M. Dershowitz in connection to his filing the Motion in Limine to Overrrule Objections As to Application of Settlement Rules, Filing# 35429605 E-filed 12/11 /2015 at 10:08:04 a.m., and to strike Defendant's affidavit, pleadings and grant attorney's fees to Virginia Roberts, and hereby states as follows. INTRODUCTION Alan Dershowitz intentionally and wrongfully submitted a misleading affidavit to this Court, knowing that Non-Pa1ty Virginia Roberts had a standing objection to the disclosure of confidential settlement discussions. Dershowitz filed the affidavit with the sole purpose of putting it in the public record so he could feed falsehoods to the media. He submitted this affidavit full of misrepresentations, betting that the consequences from this Cou1i for his deliberate violation of the settlement privilege will not be harsh enough to offset the benefit he received by feeding false  Case 1:15-cv-07433-LAP Document 1218-37 Filed 07/15/21 Page 3 of 9 information to the press. The Court should make clear to Dershowitz that his calculation is mistaken. FACTUAL BACKGROUND David Boies, representing non-party Virginia Roberts, Defendant Alan Dershowitz, and David Stone, an attorney representing the interests of Dershowitz, met together to discuss the claims concerning litigation involving Dershowitz, Brad Edwards, Paul Cassell and Virginia Roberts. In partaking in these meetings, it was Non-Party Virginia Roberts' lawyers' clear understanding that the communications with Mr. Dershowitz were settlement discussions for the purposes of resolving claims concerning these individuals. See Exhibit I, December 11 , 20 IS, Declaration of David Boies. Following those meetings, Defendant Dershowitz was recently deposed in the above- captioned matter. During the course of his deposition, Dershowitz attempted to interject into the record non-responsive answers that disclosed the confidential settlement discussions with David Boies. Counsel for Ms. Roberts plainly instructed Dershowitz that these matters were confidential and, if that was disputed, the issue needed to be presented to a judge for resolution. MS. McCA WLEY: Again, I'm going to object to this has happened in the context of settlement -- A. -- false. MS. McCA WLEY: -- negotiations. I'm going to move/or sanctions if information is revealed that happened in the context ofselllement discussions. MR. SCOTT: I don't know whether -- I don't believe there were settlement discussions. But even if they weren't, they would still be admissible. A. Let me continue -- MR. SCOTT: For discovery purposes. A. -- that David Boies had done -- MS. McCAWLEY: I disagree. I think we're going to have to take this to the judge. then; if we're going to reveal settlement conversations in this conversation, then we need to go to the judge on it. Deposition of Alan Dershowitz, Vol. I, (Oct. I 5, 2015) at 8 I -84 (emphasis added). 2  Case 1:15-cv-07433-LAP Document 1218-37 Filed 07/15/21 Page 4 of 9 A few minutes later, counsel for Ms. Roberts raised the same objection when Dershowitz again attempted to interject settlement discussions into his deposition answers. And Dershowitz's counsel (Mr. Simpson) agreed that counsel had the right to raise the objection: MS. McCA WLEY: l object. l object. I'm not going to allow you to reveal any conversations that happened in the context of a settlement di scussion. *** MR. SIMPSON: Wait a minute. Wait a minute. Wait a minute. Please don't disclose something that she has a right to raise that objection if she wants to. R. SCOTT: Exactly. THE WITNESS: Okay. 11:40:14 MR. SCOTT: Ask your question. Deposition of Alan Dershowitz, vol. I, (Oct. 15, 2015) at 94-95 (emphasis added). In light of these clear objections during the deposition, defendant Dershowitz, knew that Virginia Roberts' lawyers had lodged objections on the record to Defendant Dershowitz's wrongful attempts during his deposition to reveal confidential settlement discussions. Nonetheless, in spite of that objection, on the morning of Friday, December 11, 2015. Dershowitz intentionally disregarded those objections and filed an affidavit in this Court's public file, outlining what he alleges 1were conversations between Defendant Dershowitz and David Boies. On Saturday, December 12, 2015, the New York Times placed on its website a story that included statements from Mr. Dershowitz's affidavit wrongfully characterizing and disclosing settlement discussions. This story appeared in the print edition of the New York Times on Sunday, December 13, 2015. Immediately after the release of Dershowitz's Affidavit, on Friday, December 11, 2015, Non-party Virginia Robe1ts filed an Emergency Motion to seal "Exhibit B, Affidavit of Alan M. Dershowitz Regarding Meetings with David Boies'' until such time as the Cou1t can hold a hearing 1 Shockingly, Defendant Dcrshowitz submitted under oath an affidavit that contains a number of statements that were "m isleading," "taken out of context," or "flatly untrue ... " See Declaration of David Boies at Exhibit I at 2. 3  Case 1:15-cv-07433-LAP Document 1218-37 Filed 07/15/21 Page 5 of 9 to rule on the settlement privilege. Non-pa1ty Virginia Roberts now moves the Court to enter sanctions against Defendant Dershowitz for purposefully making public confidential settlement discussions made under the auspices of confidentiality and for the admitted purpose of resolving claims. ARGUMENT It defies common sense for Dershowitz to claim that the discussions at issue were not settlement discussions. 2 The parties represented at these discussions have wholly opposing interests related to ongoing litigation (and potential litigation). In short, Virginia Roberts has come forward to report sexual abuse she suffered as a minor chi Id at the hands of Jeffery Epstein, Alan Dershowitz and others in relation to a Crime Victims Rights Act case in the Southern District of Florida (the "CVRA suit"). Thereafter, Alan Dershowitz proceeded to defame Ms. Roberts' lawyers, Bradley Edwards and Paul Cassell, who were pursuingjustice on behalf of the minor sex abuse victims in the CVRA suit. In response, Brad Edwards and Paul Cassell filed the defamation action. pending before this Court. 3 After that the defamation action was pending, Mr. Boies had discussions with Dershowitz in an attempt to resolve the litigation. It is hard to image what other possible basis the meetings could have had. Mr. Dershowitz argues that his discussions with David Boies were not settlement discussions. He also claims Fla. Stat.§ 90.408 only attaches to the admissibility of settlement negotiations at trial, yet publically filing confidential settlement discussions with the court 2 Florida courts adhere to the time-tested adage: if it looks, walks, quacks and swims like a duck, that is what it is. N. Broward Hosp. Dist. v. Eldred By & Through Eldred, 466 So. 2d 1210, 121 I (Fla. 4th DCA 1985) approved as modified sub nom. Eldred v. N. Broward Hosp. Dist., 498 So. 2d 911 (Fla. 1986); see also BMC Industries, Inc. v. Barth Industries, Inc., 160 F.3d 1322, 1337 (11th Cir. 1998). 3 Courts confronted with this issue have held that settlement discussions should be protected, even if they are pursuant to another case, and should not be held up to public access. See Delollis v. Fuchs, No. I2-CV- 2331 DRH AKT, 2012 WL 5867370, at *2 (E.D.N.Y. Nov. 16, 2012) ("the Court is persuaded that the interest in maintaining the confidentiality of the offer of settlement, which was made in a separate litigation not before this Court, outweighs the applicable presumption of public access"). 4  Case 1:15-cv-07433-LAP Document 1218-37 Filed 07/15/21 Page 6 of 9 frustrates the purpose of that statute. " Tlte purpose of[Fla. Stat. § 90.408} is for counsel to communicatefree(v in an effort to settle litigation without the risk tltat <my statement made will he used against his clients." Rubrecht v. Cone Distrib., Inc .. 95 So. 3d 950, 956 (Fla. 5th DCA 2012). Here, Dershowitz ft led with thi s Court, and made public, alleged statements of David Boies in order to use them against his opponents in this litigation and in his press battle. Defendant Dershowitz intentionally submitted his affidavit in an effort to misrepresent what transpired and then fed that information to the press from the Cou11 record. Indeed, the face of his motion demonstrates that he knows Non-Pa11y Virginia Roberts has standing objections to the revelation of settlement discussions and he intentionally and knowingly submitted an affidavi t attached to his motion outlining what he claims to be his version of those settlement discussions. If there was ever a case of intentional bad faith Iiti gation conduct - this is it. The Florida Supreme Court has given cou11s broad discretionary power to sancti on parties. Breaching confidential ity warrants sanctions. Parcmzino v. Barnett Bank ofS. Florida, NA., 690 So. 2d 725, 729 (Fla. 4th DCA 1997) cause dismissed, (Fla. June 2, 1997) (sanctioning a party for making public discussions that took place during mediation by striking its pleadings and dismissing the case with prej udice: " If the trial court were to allow this will ful and deliberate conduct to go unchecked, continued behavior in th is vein could have a chi ll ing effect upon the medi ation process."). Si milarl y, allowing parties to publically file discussions that took place during confidential settlement negotiations over the other party's objecti ons wou ld have a chilling effect on settlement negotiations. Therefore, the Court should strike Dershowitz's pleadi ngs as a sanction. The trial court possesses the inherent authority to impose attorneys' fees against an attorney for bad faith conduct. Moakley v. Smallwood, 826 So. 2d 221, 226 (Fla. 2002). Here, Dershowitz easily could have moved for the relief he seeks in his Motion in Limine without making public the very statements he knows were being challenged as subject to the settlement 5  Case 1:15-cv-07433-LAP Document 1218-37 Filed 07/15/21 Page 7 of 9 privilege. Attaching his Affidavit with his distorted version of the settlement negotiations' was simply a vehicle for him to falsely portray settlement discussions to the press in an attempt to prejudice this Court and tarnish the reputations of the attorneys involved. Dershowitz showed bad faith, abused the litigation process, and shou ld therefore, at a minimum, pay attorneys' fees for non-party Virginia Robert's efforts to seal this fi ling and efforts to have it struck from the record. This Court should not countenance this obvious attempt to violate and frustrate the stated purpose of Florida statutes. See Rubrecht, supra, 95 So. 3d at 956. Finally, in addition to striking Dershowitz's pleadings. striking his affidavit, and awarding attorneys' fees, Ms. Giuffre requests that the Court admonish Dershowitz that any further violations of confidential ity orders and obligations wi ll be met with even more severe sanctions. Dershowitz has previously written: "There's an old saying: 'If you have the law on your side, bang on the law. If you have the facts on your side, bang on the facts. If you have neither, bang on the table.' I have never believed that, but I do believe in a variation on that theme: {(you don't have the law or legal facts on your side, argue your case in the court o,(public opinion." Alan Dershowitz. Taking the Stand: My Life in the Law (2013) (emphasis added). Dcrshowitz has demonstrated that he is taking a page out his book and wi lling to reveal confidential information in his effort to win his battle in the court of public opinion. The Court should not permit such impermissible tactics to succeed. CONC LUSION WHEREFORE, Non-Party Virginia Roberts respectfully requests that this Court grant her Motion for Sanctions and strike Dershowitz' pleadi ngs, or, at the very least, strike '·Exhibit B, Alan Dershowitz' Affidavit" in support of Defendant Alan M. Dershowitz's Motion in Limine to Overrule Objections As to Application of Settlement Rules, Filing# 35429605 E-Filed 12/11 /20 15 6  Case 1:15-cv-07433-LAP Document 1218-37 Filed 07/15/21 Page 8 of 9 at 10:08:04 a.m., and award attorneys' fees and costs, and admonish Dershowitz that any further violations of his confidentiality obligations will lead to even more severe sanctions. Dated: December 16, 2015 Respectfully submitted, BOIES, SClllLLER & FI.EXNER LLP 401 East Las Olas Boulevard, Suite 1200 Fort Lauderdale, Florida 33301 Telephone: (954) 356-0011 Facsimile: (954) 356-0022 By: ls/Sigrid S. McCawlev Sigrid S. Mccawley, Esq. rlorida Bar No. 129305 Atlorney for Non-Party Virginia Roberts 7  Case 1:15-cv-07433-LAP Document 1218-37 Filed 07/15/21 Page 9 of 9 CERTIFICATE OF SERVICE HEREBY CERTIFY that on Decemberl6, 2015, a true and correct copy of the foregoing was served by Electronic Mail to the individuals identified below. By: ls/Sigrid S. Mccawley Sigrid S. Mccawley Thomas E. Scott Jack Scarola [email protected] SEARCY DENNEY SCAROLA BARNHART Steven R. Safra & SHIPLEY, P.A. [email protected] JSX @sea rev law .corn COLE, SCOTT & KISSANE, P.A. 2139 Palm Beach Lakes Blvd. 9150 S. Dadeland Blvd., Suite 1400 West Palm Beach, FL 33409-660 I Miami. Florida 33156 Renee.nai [email protected] Allorney for Plaint(ffs Shell [email protected] Richard A. Simpson rsimpson@" ile\ rein.com Mary E. Bo1ja [email protected] leyrei n.corn Ashley E. Eiler aei ler((i)wi levrei n.corn WILEY REIN, LLP 1776 K Street NW Washington, D.C. 20006 Counsel for Defendant Alan Dershowilz 8