EFTA01128665.pdf

IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA JEFFREY EPSTEIN, Complex Litigation, Fla. R. Civ. Pro.1201 Plaintiff, Case No. 50 2009CA0408001000CMB AG v. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and.., individually, MOTION OF PLAINTIFF TO OVERRULE OBJECTIONS AND COMPEL DEFENDANT EDWARDS TO ANSWER QUESTIONS AND APPEAR FOR FURTHER DEPOSITION Plaintiff Jeffrey Epstein ("Epstein") moves the court, pursuant to Rule 1.380(a), Fla. R. Civ. P., for entry of an order directing Defendant Bradley J. Edwards ("Edwards") to appear forthwith for further deposition before a court appointed Special Master and to respond to questions asked of him at his deposition taken on March 23, 2010 and to such follow up questions as are appropriate. The grounds for this motion are: 1. Late last year, Epstein filed this action to recover damages from Defendants, Scott Rothstein ("Rothstein") and Edwards, based on Epstein's well founded belief that the two, and possibly others, had perpetrated an illegal pyramid scheme directed toward unwitting investors who were defrauded into investing in settlements allegedly concerning Epstein as its centerpiece defendant who reportedly had settled and was expected to settle cases worth millions of dollars with clients of Rothstein Rosenfeldt & Adler ("RRA"). 2. Specifically, targets were told by Rothstein that Edwards — then a member of RRA — represented under-aged women who claimed that they had had intimate relationships with Epstein, a wealthy man, and that this conduct had resulted in felony convictions against Epstein and civil cases leading to multimillion dollar settlements and that numerous EFTA01128665  Case No. SO 2009CA040800XXXXMB AG other such women had sued or made demands of Epstein, who, the investors were told, would have little choice but to settle by paying them large sums of money or be exposed to further criminal and civil charges.' 3. The scheme seems to have been based on the notion that the "victims" would take a lesser settlement if paid promptly and that the investors who funded these early payments would be paid when Epstein paid the greater amounts to settle these claims. 4. Rothstein and his co-conspirators, including, on information and belief, Edwards, thus lured investors into turning over to the Rothstein group approximately 513 million as investments into fabricated settlements by using one or two real cases then pending against Epstein that had been filed by Edwards. In effect, Rothstein and Edwards sought to trade on Epstein's perceived "bad" name in much the same way as unauthorized persons sometimes misrepresent their connections and trade on the "good names" of others. 5. On March 23, 2010, counsel to Epstein deposed Edwards. During that examination, Edwards refused to answer numerous questions to which he or his counsel Jack Scarola objected. For example, he was asked generically about RRA's document storage system: Q. And what type of information didyou put into Q-cask regarding the claims against Mr. Epstein? MR. SCAROLA We're going to object ...I will instructyou not to answer on the basis of both attorney-client and work-product privileges. Edwards had filed suits against Epstein on behalf of lane Doe,M. and before joining RRA, but some months atierhe joined the firm, he filed a second suit, a federal court action, on behalf of.. 2 EFTA01128666  Case No. SO 2009CA040800XXXXMB AG Id. at 54. This question in no way threatened either privilege and could have been answered without disclosing any client confidence, strategy or manner of handling the litigation. 6. Edwards's counsel made it clear that his client would not answer any question when instructed not to answer. Id at 55, lines 4-8. Epstein's counsel then asked Edwards how he came to join RRA His counsel — based on a "privacy right" that is not a recognized privilege — would not permit questions to be answered about the terms of Edwards's hire by Rothstein, including his compensation. Edwards was asked about his job interview with Rothstein: Q. Did [Rothstein] askyou how muchyou were making.. A A. I believe so. Q. What didyou tell him? MR. SCAROLA: Objection, Instructyou not to answer on the basis of economic privacy. Q. What didyou tell him thatyou expected? MR. SCAROLA: Objection, economic privacy. Id at 72 - 73. Q. All I am interested now... [is] whatyou told him.... MR. SCAROLA Objection, economic privacy, instructyou not to answer. It's neither relevant nor material nor reasonably likely to lead to relevant material information and invades the economic privacy of the witness. Id. Q. And was the number thatyou gave him more thanyou had earned for the year 2008 or less? 3 EFTA01128667  Case No. SO 2009CA040800XXXXMB AG MR. SCAROLA Same objection. Q. Did you tell him thatyou ... wanted to make more money thanyou had in the proceedingyear? MR. SCAROLA Same objections and instructions. Id, at 72-74;. snalso id73, at lines 20-24. 7. Edwards acknowledged that he was given a "number," but was instructed on multiple questions nor to answer because the question was deemed by his attorney to be irrelevant and invasive of Edwards's privacy rights. Id at 73. Clearly, there was no basis for Edwards's lawyer to direct Edwards not to answer questions about the job offer he received from Rothstein'' Moreover, relevancy is not a sufficient ground to silence a witness, especially in a case like this where incentives offered to Edwards and accepted by Edwards are plainly relevant to a determination of whether he was privy to the Rothstein Ponzi scheme and why he decided even to join RRA It is significantly relevant to his counterclaim since he is claiming loss of profits. 8. Edwards then proceeded not to answer at least sixteen other questions claiming attorney-client privileges. (Copies of the applicable transcript pages are attached hereto as Ex 1.) For example, Edwards's attorney coached him when Edwards was asked how one plaintiff, E.W., came to contact referring attorney Howell. Id at 89, II. 9-19. Edward's attorney told him he could not even answer the threshold "yes" or "no" question: Did [Mr. Howell] ever relate that toyou." Id 2 The three cases referred to above have concluded as of this time and there seems to be no way disclosure about communications with government lawyers could adversely effect Edward's now former clients. 4 EFTA01128668  Case No. SO 2009CA040800XXXXMB AG 9. Edwards in one instance when asked what his client E.W. told him on the phone, himself claimed privilege. Id at 90. Later, when asked "for what purpose did Ms. M. originally hire you?," his attorney objected based on so-called attorney privilege, although Edwards could have answered the question without disclosing information intended to be kept confidential by his client ' M. at 99. Facts are only protected by the attorney-client privilege if they are intended by the client to be maintained in confidence and are communicated by one seeking legal advice from the attorney to whom the communication is made. Section 90.502 (2), Fla. Stat.; State v. Rabin, 475 So. 2d 257, 260 (Ha. 3d DCA 1986);see Hoch v. Rissman. Welsher& Barren, th 742 So. 2d 451 (Fla. 5 DCA 1999. Therefore, if the answer was evident from the complaint eventually filed by Edwards ("to seek redress from Jeffrey Epstein"), it would not be privileged. Likewise, if.. had initially hired Edwards to consult him about a claim she never pursued, the subject might arguably be privileged depending on the client's intent. ld EFTA01128669  Case No. SO 2009CA040800XXXXMB AG 10. Mr. Scarola also erroneously counseled Edwards not to answer a series of question about his communications with federal prosecutors: "...do you know whether, at the time that you represented lane Doe... whether she was considered a victim by the U.S. Attorney's Office?" and then re-phrased: "...Mid you learn whether [lane Doe 1] was listed as a, or deemed to be a victim by the U.S. Attorney's Office?" Id at 100.104. Although contrary to law, Mr. Scarola's stated position was that any thing learned in the course of representation of a client is privileged, regardless of whether the information came from the client or was in the nature of work product or simply told to the client in a discussion about another case. He announced "[w]t are not going to discuss anything that Mr. Edwards did in the course of the prosecution of his claims on behalf of his clients. Id at 100-104. Conceding only that the court might give some instruction on how it will interpret work product privilege "in this context," Edwards's lawyer asserted that questions about Edwards's interaction with the U.S. Attorney's Office "exert[ed] a chilling effect" on the work he continued to do for his three clients.' Id at 104. Edwards through counsel also raised relevance which is not an objection that would support a directive not to answer at all. Sec e.g., Id at 105. 11. Next, Epstein's counsel asked about Rothstein's involvement in the cases brought by Edwards against Epstein.. Edwards testified that he had fewer than three conversations with Rothstein about the Epstein cases. Id at 112-113. Edwards described one, after conferring with his counsel to determine if it could be disclosed or was privileged, which was merely a passing comment by Rothstein, "I want you to get that pedophile." Id at 114. The next was another such comment "didyou get that ring pedophileyet?" Id at 116. Counsel continued: The three cases referred to above have concluded as of this time and there seems to be no way disclosure about communications with government lawyers could adversely effect Edwards's now former clients. 6 EFTA01128670  Case No. SO 2009CA040800XXXXMB AG Doyou remember a third occasion that [Rothstein] spoke toyou regarding Epstein related cases? A. Anything else that he ever spoke with me about related to Epstein related issues is attorney-client and work-product privileged information that I am not going to divulge. M at 116.117. Q. What was the legal issue liaised by Rothstein about Epstein]? MR. SCAROLA Work product privilege. Id. at 126-127. Edwards wrongfully claimed the work product privilege for these questions as well: Q. What connection, if any, did Ghislaine Maxwell have to [your three clients]? MR. SCAROLA Obstruction, work product. lnstructyou not to answer. Id at155.' Q. Who did Nike Fisten] go to California to interview? MR. SCAROLA: That is work product and I instructyou not to answer. M at 170. Q. Did Mr. Fisten interview a person by the name of Michael Sanka? MR. SCAROLA That is work product and I instructyou not to answer. Q. Did Mr. Fisten interview a individual by the name of Michael Friedman? Edwards had by this time already put considerable allegations concerning the answer to this question into the records. Obviously, his clients' interaction with Maxwell was not intended to be kept in confidence. 7 EFTA01128671  Case No. SO 2009CA040800XXXXMB AG MR. SCAROLA. That is work product and I instruct you not to answer...any and all questions about investigative work will meet with the same objection and same instruction. Id at 170-171. Q. Who was the first investigator that you believe was involved in investigating the Epstein cases?... MR. SCAROLA Work-product, instructyou not to answer. Id at 179. Q. Who other than Mr. listen from an investigator, from an internal investigator at RRA employee worked on doing investigation on the Epstein files? MR. SCAROLA Same objection [work product], same instruction. Id. at 181. Q. ... Did you ever tell them or direct [your investigators] to go through Mr. Epstein's trash? MR. SCAROLA ... Same objection [work-product, attorney-client privilege]. Mat 185. Q. Did you ever direct the investigators to go through the trash of the lawyers who were representing Mr. Epstein including myself? MR. SCAROLA Same objection [work-product, attorney-client privilege]. Id. at 185-186. Q. Did you ever direct the investigators to, during the timeyou were at RRA, to conduct a surveillance on Mr.Epstein's property? MR. SCAROLA Same objection [work-product, attorney-client privilege]. Mat 186 [repeats similar questions and same objections , p.187]. 8 EFTA01128672  Case No. SO 2009CA040800XXXXMB AG Q. Did you authorizeyour investigators to hire ... informants? MR. SCAROLA Same objection [work-product, attorney-client privilege] Q. Did you authorizeyour investigators to do electronic eve's dropping [sic] MR. SCAROLA Same objection [work-product, attorney-client privilege] Id at 192. Q. Did you ever authorize any investigators to enter... Mr. Epstein's property on March 17, 2010? MR. SCAROLA: Objection ...work-product privilege. Mat 198. Q. Areyou aware of any investigators who entered Mr. Epstein's property on March 17th, 2010. MR. SCAROLA Same objection as well as, attorney-client privilege.... Id Q. . didyou authorize any investigators to trespass on Mr. Epstein's property on March 171h of 2010? MR. SCAROLA Same objection [work-product, attorney-client privilege] and instruction. id. at 198-199. Q. Did you authorize investigators to hide in the bushes at Mr. Epstein's house in order to take photographs...? MR. SCAROLA Same objection [work-product, attorney-client privilege] and instruction. /d. at 199,11. 25, 1-12. Q. [regarding Patrick Roberts] Did he ever perform investigation work on any of the Epstein 9 EFTA01128673  Case No. SO 2009CA040800XXXXMB AG files? MR. SCAROLA: Same objection [work-product, attorney-client privilege] and instruction. Id. at 200. Q. [regarding investigator named "Rick"] ... did you authorize Rick to perform any investigation on the Epstein files? MR. SCAROLA: Same objection [work-product, attorney-client privilege] and instruction. Id at 200-201. Q. Would it be a correct statement thatyou have never authorized anyone from Blue Line Research and Development, LLC, to conduct any investigation of 'affray Epstein? MR. SCAROLA: Same objection [work-product, attorney-client privilege]. Id,at 201. Q. [D]id you ever authorize or direct Ken Jenne to perform any investigation on the Epstein files? MR. SCAROLA: Same objection [work-product, attorney-client privilege] and instruction. 12. Counsel to both parties agreed that Edwards would identify investigators who worked at the direction of Edwards if the Court were to determine Epstein is entitled to this information. Id. at 202-203. Counsel to Epstein clarified that by moving on to other subject matter, he was not waiving his right to pursue inquiry about these individuals. Mr. Scarola agreed. Id. at 203,11. 4-16. 13 Epstein's counsel proceeded to other areas of inquiry. He asked if Edwards had ever spoken to Alfredo Rodriguez during the hiatus between the deposition sessions with Rodriguez. A claim of work product privilege was made. Id. At 205-206. Edwards refused to answer any questions about his communications with Rodriguez. Id at 208-210. I0 EFTA01128674  Case No. SO 2009CA040800XXXXMB AG He similarly refused to say if he was cooperating with the U.S. Attorneys office. /cf. at 213-217 (citing work product) Q. Have you had any discussion with any of the other lawyers who represent clients in the ... matters regarding Mr. Epstein's probation? MR. SCAROLA Same objection (work-product, attorney-client privilege( and instruction and joint prosecution interest. at 223 14. The court must overrule the foregoing objections raised because many were never sought to discover privileged information and the privileges are not absolute. In fact, the cases referred to -- •,Nand Jane Doe -- have all been settled and there is no longer any basis to seek to protect most information gleaned in preparing for them as work product. This is particularly true given the allegations of this case. Moreover, even where work product is raised, the circumstances surrounding the Renzi scheme perpetrated at the Rothstein firm require responses to information directed to its methods and perpetrators.' 15. A special master should preside at the further deposition of Edwards in order to rule on objections and order answers where no valid objection is made and the Court or the designated Special Master should (a) examine in camera any documents referred to by Edwards and which he claims are work product to determine if they deserve protection from discovery in this case; and (b) take testimony incameraon any question that Edwards refuses to answer based on privilege. Legal Memorandum 6 The sensational nature of the charges against Epstein in the cases brought by Edwards and others ought not diminish the fact that Epstein was used as bait by Rothstein and others to entrap third parties seeking investments. In this, those investors as well as Epstein — all victims in this scenario — have a compelling need to discover a//of the evidence known to those who surrounded Rothstein and his cohorts. II EFTA01128675  Case No. SO 2009CA040800XXXXMB AG A. Objections Based on the Attorney Client Privilege Generally Should Be Overruled During his deposition, Edwards and/or his counsel invoked a claim of attorney client privilege more than 15 times in response to questions that seemingly could have been answered without divulging confidential information obtained from clients who at the time the information was given were seeking legal services from Edwards. See, e.g, Deposition Transcript at 54, 89, 91,98, 114, 116-117, 208; Exhibit A. In nearly all of these, as evidenced by the questions outlined above, Edwards's objection should be overruled and he should be required to answer the questions. He can do this without disclosing privileged information. The attorney-client privilege applies to confidential communications made in the rendition of legal services to the client. Section 90.502, Fla. Stat.; Southern Bell Tel. & Tel Co. v. Reason, 632 So. 2d 1377 (Fla.1994). Section 90.502 codifies the attorney-client privilege which protects those confidential communications between attorney and client made to obtain or to provide legal services to the client. State it Rabin, 495 So. 2d 257, 260 (Fla. 3d DCA 1986); see U.S. v. Ke/fr, 569 F.2d 928, 938 (5th Cir. 1978). In order to invoke the attorney-client privilege, one must establish the following elements: (1) the asserted holder of the privilege is or sought to become a client (2) the person to whom the communication was made (a) is a member of a bar of a court, or his subordinate, and (b) in connection with this communication is acting as a lawyer•, (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing primarily either (I) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or ton; and (4) the privilege has been (a) claimed and (b) not waived by the client. In re Grandluy Proceedings, 517 F.2d 666, 670 (5th Cir. 1975), quotingUnitedStates v. UnitedShoe Machinery Corp., 89 F.Supp. 357, 358-59 12 EFTA01128676  Case No. SO 2009CA040800XXXXMB AG (D..Mass.1950). The burden of proof is in the first instance on the individual asserting the privilege to demonstrate an attorney-client relationship. C. McCormick Evidence, s 88, p.179 (Cleary ed. 1972). The privilege does not apply to all communications between attorney and client. For example, where a client shared confidential communications with an attorney to confer about his client, her former husband, a client of that attorney, the confidential communications were not privileged. State v. Rabin, 495 So. 2d 257, 260 (Fla. 3d DCA 1986)(even if the giving of such advice constitutes the rendering of legal services, it could not serve as a basis for protecting Diais earlier communications because those communications were not made for the purpose of receiving said legal services). See Fisher v. U.S, 425 U.S. 391, 403 (attorney-client privilege "protects only those disclosures necessary to obtain informed legal advice which might not have been made absent the privilege"). Moreover, not all communications between attorney and client are privileged. For example, in Kilbourne & Son v. IQ/bourne, 677 So. 2d 855 (Fla 1st DCA 1995), the court held that a worker's compensation attorney's advice given to a client that he was statutorily required to perform a good faith job hunt in order to receive benefits for lost wages, was not a confidential communication within the ambit of the privilege; see also Watkins v. State, 516 So. 2d 1043 (Fla. 1st DCA 1987), rev. denied 523 So.2d 579 (Fla. 1988) (defendant's former attorney not barred from testifying at trial that he gave notice to client about the trial dates where defendant failed to appear). Once a claim of privilege is made, the burden shifts to the adverse party to show that the communication was not privileged. Leithauser v. Harrison,168 So. 2d 95 (Fla. 2d DCA 1964); see also Nationwide Mut. Fire Ins. Co. v. Hannon, 580 So. 2d 192, 192-93 (Fla. 4th DCA 1991) ("N]othing in the record indicates that any documents are protected by the attorney/client privilege. If petitioner thought some documents might be protected by either privilege, it should have listed the 13 EFTA01128677  Case No. SO 2009CA040800XXXXMO AG specific documents to which it claimed the privilege attaches. Otherwise, neither the trial court nor this court has anything specific to address."). "The proper procedure is for the trial court to examine the disputed documents in-camera and remove those documents which fall into the privileged category." State FarmMut. Auto. Ins. Co. v. Kendrick 780 So. 2d 231, 233 (Fla. 3d DCA 2001) (error for trial court to order production of documents allegedly protected by attorney-client privilege with instruction to counsel seeking discovery to decide whether the document was privileged); see Pasron v. Wigs Contracting Co., Ltd,Inc, 698 So. 2d 933, 934 (Fla. 4th DCA 1997) (error to deny motion for protective order concerning subpoena duces tecum seeking records on basis of attorney-client and work product privilege without conducting an in camera inspection of items in question to determine whether claimed privileges apply); Shuman v. Hovnanian ofFlorida. Inc., 382 So. 2d 1376, 1378-79 (Fla. 4th DCA 1980). Use of an in camera examination also applies to testimony a witness seeks to protect as privileged. Stare v. Young 654 So. 2d 962, 963 (Fla. 3d DCA 1995) (trial court properly conducted in camera hearing outside of the State's presence to determine whether testimony was protected by attorney-client privilege). Here, Edwards's testimony is required and a further deposition should be conducted before a judge or special magistrate so that privilege determinations can be made as required by Florida law. B. The Work Product Doctrine Does not Prevent Edwards fromResponding to Questions at Deposition Edwards also claims that he could not respond to a host of questions at his deposition because to answer them would reveal work product. See, e.g, Deposition Transcript at 50, 54, 91, 100.104, 114, 126,-127, 155, 170, 181, 184.187, 192, 198.202, 205.206, 208.210, 212, 215-217; Exhibit Forty years ago, the Florida Supreme Court, in Surftiny, Inc v. Vermette, 236 So. 2d 108,112 (Fla. 1970), gave this 14 EFTA01128678  Case No. SO 2009CA040800XXXXMB AG general definition of work product saying what it is and what it is not: (T)hose documents, pictures, statements and diagrams which are to be presented as evidence are not work products anticipated by the rule for exemption from discovery. Personal views of the attorney as to how and when to present evidence, his evaluation of its relative importance, his knowledge of which witness will give certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his own convenience, but not to be used as evidence, come within the general category of work product. Id at 112 (emphasis added). The "work product" doctrine protects documents and papers of an attorney or a party prepared in anticipation of litigation, regardless of whether they pertain to confidential communications between attorney and client. Fla.R.Civ.P. 1.280(b)(2). See Southern Bell Tel & Tel Co. v. Beason, 632 So. 2d 1377 (Fla. 1994). The privilege may also protect his mental impressions which may be disclosed through testimony. Hamilton v. Ramos,. 796 So. 2d 1269. 1270 (Fla. 4th DCA 2001) (error to compel deposition answers over claim of fact and opinion work product without conducting an in camera hearing.); State v. Rabin, 475 So. 2d 257 (Fla. 3d DCA 1986). Notwithstanding the general rule, a party may obtain discovery of documents and tangible things prepared in anticipation of litigation or for trial by another party ( i.e., "fact" work product) upon a showing of (a) need for the materials to prepare the party's case, and (b) inability to obtain the substantial equivalent of such materials without undue hardship. Metric Engineering Inc. v. Small 861 So. 2d 1248, 1250 (Fla. 1st DCA 2003) (to show 'need, a party must present testimony or evidence demonstrating that the requested material is critical to the theory of his case, or to some significant aspect of the case after which the trial court should conduct an in camera review to evaluate whether the contested materials provide the requisite evidentiary value alleged by the requesting party and determine whether the requested materials are substantially similar to materials already available.) 15 EFTA01128679  Case No. SO 2009CA040800XXXXMB AG Generally, fact work product is subject to discovery upon a showing of "need: Rule 1.280(6)(3), Florida Rules of Civil Procedure, provides for a limited privilege for "fact work product — factual information concerning the clients case and prepared or gathered in connection with its preparation. Wal-Man Stores, Inc. v. Weeks, 696 So. 2d 855, 856 (Fla. 2d DCA 1997) (trial judge did not depart from essential requirements of by not protecting materials from discovery when plaintiff retailer presented no evidence to support its claim, but only made "a blanket statement that the requested items were prepared in anticipation of litigation."). On the other hand, opinion work product is absolutely, or nearly absolutely, privileged. The Rule requires courts to protect against disclosure respecting mental impressions, conclusions, opinions, or legal theories of an attorney ( i.e., 'opinion' work product),. The difference between the degrees of protection given oral and written statements is based partially upon this distinction between fact and opinion work product. Work product protection is limited to materials which are not intended to be used as evidence at trial. Northup v. Acken, 865 So. 2d 1267, 1270 (Fla. 2004) ("when a party reasonably expects or intends to utilize an item before the court at trial, for impeachment or otherwise, the video recording, document, exhibit, or other piece of evidence is fully discoverable and is not privileged work product:). In Nonhup, the court remarked that a litigant must decide whether the material is going to be used only for strategy and trial preparation purposes prior to the entry of a pretrial case management order by the trial court. If it is, the work product protection can continue. See also Gabriel v. Northern Trust Bank ofFlorida, NA., 890 So. 2d 517 (Fla. 4th DCA 2005) (request for production of documents that required party to produce all documents that 'relate to or otherwise support" each allegation [in the] complaint' and required attorney to make a determination of relevance are protected work product unless the attorney expects or intends documents to be used at trial.) On the other hand, if the party reasonably 16 EFTA01128680  Case No. SO 2009CA040800XXXXMB AG expects or intends to use the evidence at trial, for impeachment, or otherwise, the work product protection ceases and the material must be identified and disclosed.) if the court determines that a particular request or question calls for the disclosure of protected work product, before determining whether a requesting party has shown sufficient need and hardship, a trial court must first decide whether the material involved was prepared in anticipation of litigation. Airocar, Inc. v. Goldman, 474 So. 2d 269, (Fla. 4th DCA1985) (citing Cotton States MutualInsurance Company v. Turtle ReefAssociates, Inc., 444 So. 2d 595 (Fla. 4th DCA 1984); Selected Risks Insurance Company v. White, 447 So.2d 455 (Fla. 4th DCA 1984)(urging trial court to make findings on that issue). if the requested material or information was prepared in anticipation of litigation and its disclosure has not been waived, then the requestor must allege "need and hardship" in the motion to compel supported by evidence such as an affidavit to establish both. Wheaton v. Marshall 631 So. 2d 323,325 (Fla. 4th DCA 1994) (because motion "contained no claim that the factual information in the memorandum is needed in the forthcoming evidentiary hearing or that the information cannot be obtained from any other source without undue hardship, the motion was facially insufficient to compel production and should have been summarily denied"). In this case, the questions that Edwards refused to answer questions concerning the handling of his cases that are now resolved while he was at the RRA criminal enterprise. There is a split of authority as to whether the work-product privilege extends beyond the case for which the work product was gathered. State v. Rabin, 495 So. 2d at 262; Alachua Gen. Hosp. v. Zimmer USA, Inc, 403 So. 2d 1087, 1088 (Fla. 1st DCA 1981) (privilege continues after case concludes but after case concluded); UnitedStates v. InternationalBusiness Maths. Corp., 66 F.R.D. 154,178 (S.D.N.Y.1974) (privilege applies only if the work product was gathered in anticipation of the very case in which the privilege is sought); Hanover Shoe, Inc. v. United 17 EFTA01128681  Case No. SO 2009CA040800XXXXMB AG Shoe Mach. Corp., 207 F.Supp. 407, 410 (M.D. Pa.1962) (same); d. Hercules Inc. v. Exxon Corp., 434 F.Supp. 136, 153 (D.Del.1977) (privilege extends to only those subsequent cases which are closely related); MidlandInv. Co. v. Van Alsoine Noel & Co. 59 F.R.D. 134 (S.D.N.Y.1973) (same). In this case, there is good cause to overrule the objections bases on the work product doctrine and require Edwards to answer. The Rabin Case. One Florida court of appeal has carefully distinguished the difference between fact and opinion work product. In Rabin, the court of appeal concluded that the State was entitled to all of the factual information which the witness Diaz, the former wife of Rabin's client, had transmitted to attorney Rabin during their conversation while Rabin was preparing her ex-husband's case. Because Diaz did not come to see Rabin to obtain legal advice, their conversation was not that of attorney and client and thus not privileged, so the substance of her statements was discoverable. In Rabin the trial court had ordered that Rabin did not have to respond to questioning regarding the initial conversation that took place between Diaz and him. On petition for writ of certiorari, the Third District concluded that the trial court had departed from the essential requirements of the law by directing that Rabin need not respond to questions about what Diaz said and that, because Rabin could have had no significant interest in the substance of Diaz's statements, the State should have been permitted to question Rabin regarding Diaz's communications. The court clarified that Rabin did not need not respond to questions concerning his half of the conversation or to questions which would require him to reveal either his mental impressions of the conversation, or his conclusions, opinions, or theories drawn from the conversation -- he needed only to respond to questions concerning the content of Diaz's statements. Rabin, 495 So. 2d at 263.264 (citing In re Grandlu91Subpoena Servedupon Doe, 781 F.2d 238,249 (2d Cir.), cen. denied, 475 U.S. 1108 (1986)(attorneys are not exempted from duty to appear and give evidence before grand fluy merely because they are attorneys.)). 18 EFTA01128682  Case No. SO 2009CA0-0OSOOXXXXMB AG As for the trial courts decision to require Rabin to produce documents relating to his conversation with Diaz other than his notes, the court of appeal found no departure from the essential requirements of law and that the State was entitled to Rabin's fact work product but not his opinion work product. 495 So. 2d at 263. C. No Other Other Objection Should b Susained. During his deposition, Edwards also raised something called economic privacy as a basis not to answer questions. See Transcript at 72-74. While Edwards may have some interest in keeping his earnings to himself, in this case he has claimed in a Counterclaim that he has suffered damages to his earnings due to the filing of this action. Moreover, what he was offered and actually received while at RRA is relevant to explain how he came to move his practice to RRA and what his motives may have been to assist Rothstein in his conspiracy. Finally, even if these factors did not exist, there is no economic privacy privilege and a confidentiality order limiting the use of compensation information to this case would limit any concerns. Edwards is not entitled to not answer. Conclusion WHEREFORE, based on the foregoing grounds, Jeffrey Epstein requests that the Court enter an order (1) appointing a special master to consider objections of Bradley Edwards made at his deposition in March 2010 and overruling those that are unfounded, (2) directing Mr. Edwards to submit to a funher deposition to answer questions he previously refused to answer and permit follow up questions as counsel to Plaintiff deems appropriate, (3) examine in camera any documents referred by Edwards in his claims of work product, and (4) awarding Epstein his reasonable expenses incurred in obtaining such order and such other relief as the Court deems proper. November _, 2010. 19 EFTA01128683  Case No. SO 2009CA040800XXXXMB AG Joseph L. Ackerman, Jr. Florida Bar #235954 Christopher Knight Florida Bar #607363 FOWLER WHITE BURNETT, PA Attorneys for Plaintiff Phillips Point, West Tower 777 South Flagler Drive, Suite 901 West Tower West Palm Beach, FL 33401 CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing Motion to Overrule Objections and Compel Defendant Edwards to Answer Questions and Appear for Further Deposition was served by this day of November, 2010 on: Jack Scarola Searcy Denney Scarola Barnhart & Shipley Attorneys for Bradley/. Edwards 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 Marc S. Nurilc, Law Offices ofMarc S. Nurik Attorneys forScott Rothstein One E. Broward Blvd., Ste 700 Fort Lauderdale, FL 33301 20 EFTA01128684  Case No. SO 2009CA040800XXXXMB AG Ica) wAs0743 rnotion to °amp!upd0 2/16/10-10AM 21 EFTA01128685