IN THE CIRCUIT COURT OF THE

1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, III AND FOR PALM BEACH COUNTY, FLORIDA I 2 3 4 PROCEEDINGS - - - THE CCORT: Thank you. Welcome back everybody. Have a seat. 3 Case No. 502009CA040800XXXXHB a KR. SCAROLA: May I now to this podium now? JEFFREY EPSTEIN, biaintirs/countor -Defendant, vs 4 THE CWRT: Sure. 'at. SCAROLA: Thank you, sir. SCOTT ROTHSTEIN, individually; • Your Honor, have we wowed what notions were BRADLEY EDWARDS, individually, boranciants/countor -Plaintiffs. , 10 going to hoar? THE COURT: Yes. My understanding as I left / 11 Was going to be Wetted,' Second Supplement to TRANSCRIPT OF PROCEEDINGS I2 Motion in Lunine Addressing Scope of Admissible 13 Evidence, and of course in that same vein Epstein's DATE TAKEN: Thursday, March 8th, 2018 )4 Notice of Service of Unredacted Appendix in TIME: 1:30 p.m. - 4:50 p.m. PLACE 205 N. Dixie Highway, Roon IOD IS Support -- or Response in Opposition to Edwards' Most Pain Beach, Florida BEFORE: Donald Natal., Presiding Judge I, Second Supplenental Motion in Limine addressing J7 Scope of Admissible Evidence. IS 19 KR. SCAROLA: Your Honor, there are actually nuitipie submissions to the Court to deal with This cause cane on to bo hoard at the tine and 20 closely-related issues, and those issues arise out place aforesaid, when and whore the following proceedings were reported by: 21 of the tact that over the course of the last three 22 weeks /24 new exhibits have been added to the Elaine V. Williams r3 exhibit list of the defendant Epstein. Palm Beach Reporting Service, Inc. 1665 Palm Beach Lakes Boulevard, Suite 1001 West Palm Beach, FL 33401 t4 2, And jolt. CO provide cone general background, babi of Mich your Honor nay recall, there was an 2 4 1 APPEARANCES: I exhibit list filed by Mr. Epstein on November 16, 2 For Plaintiff/Counter-Defendant: 2 2017. That GOT* exhibit list was attached to the 3 LINK a ROCKEIIBACH, P.A. pretrial stipulation on December 22, 2017. And 4 4 then for the first tine on March 5th of 2010 the By KARA BERARD ROCKENBACH, ESQUIRE 5 new exhibit list was filed. If you compare the S By SCOTT J. LINK, ESQUIRE 6 For Defendant/Counter-Plaintiff: SEARCY, DENNEY, SCAROLA, BARNHART C 4 7 exhibit lists of Hovenber 16th and Densber 22nd, which, as I said, are the same, with the March 5th 7 SHIPLEY, P.A. 8 exhibit list, 25 new exhibits -- excuse me -- 724 0 9 new exhibits were added. By JACK SCAROLA, ESQUIRE JO Your Honor held a hearing in this matter on 9 By DAVID P. VITALE JR., ESQUIRE By KAREN TERRY, ESQUIRE 11 Deowbor 5th and mud it clear to all parties that 10 12 exhibits that. mire not disclosed by the end of II For Non-Parties L.M., E.M. 4 Jana 000 22 HATCH, JAMES 4 DODGE, P.C. 1a Deoebor -- and I think it nay have been the 14 De her 22 dice -- I'm not sure about that exact 13 la date -- bat exhibits that were not specifically By PAUL G. CASSELL, ESQUIRE 14 1a disclosed would net be penn/Lted CO be used at. 25 For Jeffrey Epstein: 17 trial. You rude it clear that catchall listings 16 ATTERBURY, GOLDBERGER a WEISS, P.A. 1ca would be unacceptable; that specific Individual 17 lo exhibits needed to be listed. I'n sure your Honor By JACK A. GOLDBERGER, ESQUIRE 25 has a recollection of these circumstances. And 10 29 21 that, obviously, is a fairly standard order that S0 31 your Honor adheres to in connection with trial Si 22 21 practice. 23 24 THE COURT: what I lust Wanted to point out is 24 25 in conjunction with what we're going to be 25 Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793787 I 5 eventually talking about, we're now dealing with , And those are 45 of the 724 newly -listed documents. 7 2 the Motion co Strike Epstein's, Untinoly 2 And those docunents were brought to our attention ) Supploxental Exhibits and co Strike All Exhibits o last wok just 4 and Any Reference to Docunenta Containing 4 So my suggestion to your Honor is that wo deal 5 Privileged Materials, Listed on Edwards' Privilege o first with the procedural issue because, as I said, 4 Log. 4 that will narrow issue. significantly. And then / MR. SCAROER: Yes, air. there will still renaln saw substantive issues 0 THE COURT: That led into what I described r with regard specifically to any attempted use of 0 earlier of the notions that will be on the table. , privileged notarial*. 10 MR. SCARCER: That's correct. And that's why 10 NOV, your Honor heard from both opposing II I acknowledged, your Honor, that we're really II counsel that I have accused then of having stolen 12 dealing with a 'unbar of closely -related notions. I2 the documents. I assure your Honor that that's net 13 So the first issue is a procedural issue; and I) the case. I have not accused then of having stolen 14 chat in, whether your Honor IS going CO allow the 14 the documents. Whet I have said in repeated 15 listing and use of 724 now exhibits. And my IS comunication is that these are stolen documents. 14 suggestion CO the Court. IS that that is a threshold 14 And these documents, if your Honor has had an 17 issue chat really helps to resolve nuch of what )7 opportunity to look at the timeline, were very 10 follows because if, as a natter of procedure, chose 18 clearly at this point handed over by the bankruptcy II 724 now exhibits are not going CO be used, then 19 court to Fowler White for one purpose and one 20 much of the rest of the argument becomes 20 purpose only; and that was to print them out, Bates 21 irrelevant. 'here are, however, very significant 21 steep then so that they could be turned over for 22 substantive issues if the procedural determination 22 privilege review by the Farmer Joffe law five, 2/ does not dispose of the use of chose exhibits. 23 including specifically Brad Fedarde. 24 THE COURT: Those exhibits specifically were :4 THE COURT: Let ne stop you there so we can 25 added when? .ti put this in context. 6 8 I MR. SCARCER: They wore added by a now list / Joe Ackerman, as I recollect, was representing 2 filed on March 5th of 2018. 2 Mr. Epstein for some period of tine, and he was et 3 THE COURT: Okay. Just to put this, into 3 that Juncture associated with the Fowler White firm 4 perspective, /larch 5th would have been Monday of 4 in sone capacity. 5 this week, today being March 8th, and the trial 5 I. SCARCER; Yes, sic. That's correct. 4 starting on March 13th, presuming It begins as 4 THE COURT; So if I'm understanding this 7 scheduled. 7 correctly then, the bankruptcy court turned the 8 MR. SCARCER: Yes, sir. But I want co make it 8 documents over to Fowler White. 9 clear chat while the 724 wore never listed on a 9 I. SCARCER; Did your Honor want me to get 10 prior exhibit list before March 5, some of those 10 into that now? I'm happy to do that. 11 documents were disclosed co us over the past three II THE COURT: So that I understand. I know 12 weeks. So I a not suggesting CO your Honor that 12 during a very CUTUICUOUSI period of CIAO these would I) the first notice we got of an Intent CO attempt. to to be the Rothstein fines, erployee. 14 use chose documents was March S. The first notice 14 KR. SMOLA: Yes, air. Let ne go through IS wo got of an intent CO attempt CO use sone of these 15 this and give you a quick overview, although all 14 docunents started sone three weeks ago as new 14 the details are provided in the Lim/lino that I 17 disclosures were sent to us. I7 provided to your Honor. 18 And again, this is fret, moony, but I think 14 What happened was that iineSt ineallately 19 there may have been three separate groups of 10 following the implosion of the Rothstein, 20 it docunonts, chat wore sent co us not covering all of the 724. And obviously, your Honor knows from the 2s, 31 Rosenfeld[, Adler urn a trustee was appointed by the bankruptcy court to take control of the firm, 22 materials that you have reviewed much attention was =2 and that trustee took control of all of the firm's 33 focused on docunents chat we contend and have :I files and all of the firm's electronic data, 24 contended for eight years are privileged documents. 20 including all of its e-mail servers. So it is the 25 Docunonts, listed on a vary specific privilege log. ,5 trustee that hod possession of all of these Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793788 I 9 e-malls. I 11 And Judge Ray, federal bankruptcy Judge Ray, 2 Mr. Epstein through counsel, and at thin point 2 say➢, •Fowler Mite will not retain any copies of 3 it was the Fowler White firm, issued a subpoena in a cho docunonm contained on cho disk provided co Sc • our civil litigation, then pending in front of • nor ➢hall any lnage➢ or copies of ➢aid docunentn to S Judge Crow, for the trustee to produce all of the s retained in the »nary of Faller Mite's copiers. 4 a-evils. Judge Ray, to whom that subpoena wan 4 Should Sc be determined that Fowler White or 7 referred, Judge Ray appointed Judge Carney as a 7 Epstein retained Immoa or copie➢ of the subject • special master to make a de LLLLL nation as to what • Mo.nowas on it➢ computer or othardise, the Court a could appropriately be turned over because * retains jurisdiction co award ➢anction➢ in favor of Is obviously these were e-mails that related to a wide 10 Miner, Brad Eadardo or hl➢ client .• II variety of cases. It wan the entire contents of It So it was obvious that whet wes to happen at Ix the e-mail server of Rothstein, Rosenfeldt, Adler, 12 that point was they were to take over the 17 and it was recognized that those e- could 13 ninisteriol task es officers of the court of 14 contain attorney/client and work product privileged 14 bearing the expense to turn these docunents over to is materials. So Judge Carney was appointed a special IS Earner Jaffe and Bred Edwards for purposes of it master to make a determination as to what should 16 preparing a privilege log. 17 and could be turned over and report back to Judge )7 THE COURT: For lack of e better netephor, IS Ray. IS though, wasn't that a fox in e henhouse type of Is Judge Carney gets 27,000 e-mail! and Judge 19 situation? 20 Carney says, •1 don't have an appreciation as co 20 KR. SCAROLA: Well, sir, were these not ll what may be privileged hero. We need to =fa up 21 officers of the court, the answer to that question 22 with a procedure so that I can be advised of what 22 le yes. These were adversaries who were being 23 privilege aaaaa Clow) are being raised.• So Judge 23 given control over chase dlOeUnilIns. but they ware 24 Carney says, •1 want what wan then the newly -forced 24 adver➢aries who had a sworn duty to follow the 29 law firm that Mr. Edwards is working in, I want 25 Court's direction. And MO had ovary rea➢on to 10 12 1 Jaffe, Miming, Edwards, Flacon and Lehrman• -- I believe that this respected is.. firm and these 2 THE COURT: Farmer Jaffe, right? 2 respected lawyers would do exactly what they were 3 MR. SCAROLA: Yes. Pinner Jaffe. 3 told to do. 4 THE COURT: Be can just refer co then as 4 Now, we know that the disk that contained that a Farmer Jaffe. S information, as Ms been conceded by Epstein'a • MR. SCA/IOLA: All right. •1 want Farmer Jaffe 6 counsel, was formatted on December 10 -- excuse 7 to go through those e-mails and prepare a privilege 7 ne -- December Sth of 2010. B log. Let ne know what's privileged here, and then 0 THE ODURT: Met do you nem by the desk was • I'll make a determination as to what's going to get 9 fornatted? 10 turned over.• 10 KR. SCMOLA: Met I man was the documents on II The response from Mr. Edward through me is II chat disk ware divided into three different 12 thin is 27,000 e-mails, they want than, they should 12 categorie➢. 13 be responsible for printing than and Bates stamping 12 THE COURT: And chat wa➢ December 102 14 them and delivering those printed and Bates stamped 14 M. SCAMLA: Decenbar Bch of 2010. IS documents to us for our review. And Judge Ray Is THE COURT: Thank you. 14 enters an order. 14 HR. SCAROIA: So within approximately one week 17 And Judge Ray says in his order -- and it's 17 after being ordered not to retain any copies IS quoted in relevant part at the bottom of the first I• chore's a disk that is formatted by Fowler Mite, IS page of this timeline -- Judge Ray says the law 19 which is the disk that i➢ now In the posse➢s1on of 20 fiefs of Fowler mute will print a hard copy of all 20 Jeffrey Epstein and Jaffrey Epstein'➢ counsel. And 21 the document➢ contained on the disks with Bates 21 it contain➢ without a doubt those documents that he 22 numbers added and will provide a set of copied, 22 identify on a privilege log that i➢ generated as a 23 stamped documents to the special master and an 23 consequence of that prod➢➢. It contains those 24 identical set to Farmer, who will use the name to 24 privileged and attorney work product emmila. And 25 create its privilege log. 25 that assertion of privilege hes never been Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793789 I 13 overruled. 3 15 KR. SCAROLA: That is correct. The Conrad 2 THE COURT: Did the Special Magistrate Carney a Scherer tiro was involved in chat litigation, and 3 or Judge Ray over hold a hearing to deternine Che a the Conrad Scherer firm wag alto interested in 4 nature of the privilege? Was that over called up 0 getting to take a look at whatever relevant e-nails 5 for a hearing? s night have been in the hods of the bankruptcy 4 MR. SCAROI.A: What happened, your Honor, is c trainee. and then got turned over to us. 7 chat Judge Crow, when he learned of the Well, there were direct negotiation& in Mich 0 circumstances of what Was going on in bankruptcy • I was a personal participant with the lawyers for a court, connunicaced co Judge Carney, •This subpoena 1 Conrad Scherer, and an agreement was reached with 10 was issued in my case. While I respect you and the 10 the 'aware for Conrad Scherer because, as we have It work you aro doing, it is my Job to decide what is II told every judge before when we have appeared with 12 relevant and material in ny case and it is my Job 12 regard to these ratters, we're not atterpting to 13 to determine 122,6,02 of privilege in ny case. * That I) hide anything. You want to conduct an in-conero 14 short circuited the work that was going on in Ch. 14 inspection, he wont you to conduct an in-camera If bankruptcy court, and Judge Carney never issued any IS inspection because it will contirn that we're not I4 rulings in chat regard. I, attaining to hide anything. 17 So IC then became a natter over which Judge )7 We will turn over anything that you consider 10 Crow Man exercising Jurisdiction CO deternine hoc IS appropriate for us to turn over. But we have no II the subpoena issued in the Circuit Court State 19 ability to waive our client's attorney -client 20 Court Case, how chat subpoena was going CO be 10 privilege, your Honor, and sone of these e-rails 21 responded CO. So our privilege log gees CO Judge 21 clearly contain infornation that originated with 22 Crow. 22 clients. Md we are in the midst at this point of 23 And there's sone back and forth about whether 13 still -pending litigation, and it la laportant for 24 the privilege log la or is not adequate, and there :4 ua to protect our work product privilege as well. 25 is a direction with regard co certain requests for :2 :AN of that litigation is still ongoing right now. 14 16 I docunents on the privilege log. Specifically, I That's theCrimeVictim° Rights Mt case. 2 there is a Request Hunter II, which asks for 2 So there is a very legitimate reason for us to 3 coanonlcations, between Farmer Jaffe and the federal 3 be concerned about protecting both the work product 4 government and communications between Earner Jaffe 4 privilege and the attorney/client privilege, s and any tethers of the press. And those are 5 particularly protecting it from Mr. Epstein, and 4 ordered turned over. And chose are turned over in , particularly protecting it from Mr. Epstein new 7 full compliance with the Court's order. But the 7 that we know there was a clear violation of the S issues of privilege that wore raised with regard to S federal judge's order with regard to the ratter in 9 both attorney -client and work product privilege 9 which these materials were to be handled. 10 never gets ruled on by Judge Crow because before 10 Interestingly -- and I don't know whether II they are ruled on, a voluntary dismissal is taken II there's any relationship or not -- but shortly 12 of the claims against Brad Edwards. 12 after this disk is improperly retained by Fowler I) So we have a privilege log in place. It la White, that Fowler White winds up withdrawing from 14 specifically lists these documents. some of these 14 the cage. So they're gone. And apparently the 15 docunents wore listed as attorneys' eyes only. And le disk sits there for years until a request 12 made 14 chat restriction has never been lifted. And sore It to turn over all of Fowler white files. I/ of these documents aro listed on the separate I' And what we have been told is Fowler White IS privilege log, and those restrictions have never 1r initially, for whatever reason, resists that 19 been lifted. lo request, but Mr. Link and assoc 44444 go down CO 20 Now, in sone of the communications that have :0 Miami, they review files, they get their hands on 21 gone on back and forth you may have soon reference :1 this disk. There is a significant delay between 22 to a disclosure co the Razorback defendants. 33 their appearance in the case and when they finally 33 Excuse ea. The Razorback plaintiffs. :a go to look at the Fowler White files. Then there's 24 THE COURT: That was the litigation lad by :4 a two-week delay between looking at the Fowler 25 Mr. Scherer. ,5 White files and receiving the disk. Md then Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793790 17 19 I there's a tam-weak delay between receiving the disk 1 over to no ono. Indeed, when they got turned over 2 and starting to -- 2 to Conrad Scherer, they were originally turned over ) THE COURT: Excuse me Just a minute. 3 with a confidentiality watermark on every document. 4 Bailiff, see what may be transpiring outside, 4 And then they contacted us back again and 5 Pardon me. Off the record. 5 sold, •We're trying to OCR all of those documents 4 IDIscuasion hold off the record.) 4 so that they aro searchable, and we can't do that 7 THE COURT: Co ahead. I apologise. 2 with the watermark on then. Can you please provide 4 MR. SCAROLA: Your Honor, in the overall 0 us with another copy without a watermark?• And we * ethane of things, I don't think that those delays * did that, again, trusting these officers of the 10 make vary much difference at all. But these are 10 court co abide by their agreenent. And we have II the lawyers who, a➢ your Honor has noted, announced 11 every reason to believe that Conrad Scherer did. 12 to the Court that they were going to be ready for 12 They were not the source. II trial 90 days later, and here it is just weeks 13 The obvious source, based now upon whet we 14 before this case is about to begin that they are le have been able to piece together, i0 very clearly Is first reviewing 36 boxes, or over 30 bozos of IS Fowler White's irproper retention of this na aaaaaa 14 files. Hight have bean 32. I think 36 is the 16 after they had been expressly ordered by the 17 ntabor. But boxes of files that never oven got 27 federal court not to retain any of it. is reviewed by then. 10 How, every representation I have made to the IS So those are matters of significant concern to 19 Court, everything that is included on this timeline 20 us. But the natter of g concern is that 20 can be established through docueent0 that pinpoint 2l once it becomes apparent that these are documents 21 the dates and the identity of the individuals 22 that are listed on our privilege log, a privilege 22 involved and the character of every disclosure that 2) that has never been challenged, a privilege that 12 was rude and every disclosure that was withheld. 24 remains in place, and we notify opposing counsel 24 It has taken a substantial effort to put all of 25 here is our privilege log, here are the numbers, as this together again. Ito have been working on this 18 20 1 the whore of those documents on that 1 Pony, many, irony hoer.. But the aub,ect of 2 privilege log, you have an obligation, an ethical 2 appropriate genetic*, is a sublect for another day 3 obligation, to turn them over to us, to turn them 3 except to this extent: we need to know who has 4 over now, and to make no use of those documents 4 access, who ha0 had access to the. confidential a unless and until you have a court order that says S material. We need to know if there's sane intent 4 otherwise. You need to tell us whore did you gat 4 to call a witness who may have been given access to 7 them, when did you get them, how did you gat them, 7 this confidential materiel. We need to know all of S to whom have you distributed them? And those are 8 the lewyer0 involved. , questions that we still don't have answered. 9 And Hr. Cassell is going to address free the 10 what we get frog the other side is, 'Well, 10 perspective of the client. the concern that they 11 they could have cone tram hero, they could have 11 have atout being informed as to Tow their 12 cane from Chore, maybe they cane from someplace 12 confidences have been breached. So with your I) else, we don't know.• And if they don't know where 1, Sonor's permission, I would like him co have an 14 they came from and that source la clearly a proper 14 opportunity to addreaa the Court briefly on that IS source, they have the burden In overcoming this Is topic. IS privilege assertion to prove a waiver if they 14 THE COURT: What I'd like to do, though, is II contend any waiver existed. 17 allow defense counsel to be able to speak to the IS It wasn't with regard to Conrad Scherer 10 threshold Binger analysis dealing with the late 19 because when those documents were turned over to 19 disclosure, because if Hr. Scarola la right and 20 Conrad Scherer -- and we have the letters that 20 chat is that those exhibits were listed for the 21 confirm the written agreement with every detail of 21 first time in Mitch, which would have been three 22 that agreement in place -- those wore turned over 22 days ago, and discussed perhaps within the last few 23 as part of a cannon interest privilege with an 23 weeks, then we would have essentially a Binger 24 express representation it was attorneys' eyes only, 24 issue to analyze. So Hiss Rockentoch, go ahead and 25 with an express representation they would be turned 25 proceed in that respect, please. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793791 I 2 ) 21 MS. ROCKEUBACH: Thank you, your Honor. I am certain that this courtroom is a place where we are searching for truth and not hiding evidence, 1 2 s 23 THE COURT: Outside of the Court's review? Are you objecting to ny review? KR. CASSELL: Ho. we're not waiving any 4 whether it la evidence that causes conclusion by 4 privileges, but we don't want there to be any 5 this Court chat there is no case to be triad. And s public reference to the contents. 4 for oho first tine after four days of -- and we use 4 THE CCORT: All right. Thank you for that 7 chat word -- 7 clarification. So let ne go ahead and try and put 0 MR. SCAROLA: Excuse me. I'm sorry. If this r ny hands on -- 1 la ono of the privileged e-malls, and I assume It 0 KS. ROCKEIMACH: Your Honor, I can give you 10 probably is, your Honor has entered an order 10 the copy that Terry noted was 04408. I don't need II sealing these documents, and the prose la present. 11 it. 12 It is being displayed pronlnently in violation of IS THE COURT: Okay, that's fine. 13 ethical obligations co relinquish possession of I) HS. ROCKENBACH: The purpose of me putting 14 chase Sedum:one. )4 this particular piece of evidence, which I've been II THE COURT: All right. In lieu of publication IS asked on multiple occasions by Hr. Sterols to is in open court, why don't you just hand no the I, destroy by the barrage of e-mails over the past I' docunent, making sure that counsel also has the )7 four days, I'n handing it to the Court as evidence 10 copy or is referenced with the correct Bates stamp. IS of no Binger surprise. It can't be Binger surprise II MS. ROCKEWEACH: This is the Bates stamp 19 by Hr. Edwards if he is authoring an e-mall with 20 o-mail 04408; an a-mall from Bradley Edwards to 20 regard to this very action that's pending before 21 Paul Cassell, October 17, 2009. 21 this Court about five to six weeks before 22 THE COURT: Okay. la this an extra copy? 22 Hr. Epstein sued bin. So that can't be a surprise 2) MR. SCAROLA: Co we have an extra copy, 23 co Mr. Edwards. It actually nakes this case 24 please? There are literally thousands of O-nails :4 incredibly stronger for the issue of probable 25 we're dealing with. 2, 22 24 i MR. LINE: It's In the appendix chat we've I But note importantly, your Honor, it's about 2 provided you. 2 the truth. It's about the truth and the fact that 3 THE COURT: I'm familiar with lc fron reading 3 over the pest four days my professional integrity, 4 the naterials myself and I could probably put ny 4 dry character has been impugned to the extent that s hands on lc. S very simply we told -- actually, I didn't respond 4 MR. LINE: It's in the appendix, your Honor. 4 to any single e-mail. For the record, Mr. Link 7 Appendix 1. 7 responded to e-mails. I didn't want to respond to 8 MR. VITALE: Bates number? 8 what I sew was escalating e-mails that started off 8 MS. TERRY: 04408. 9 with a demand that we destroy evidence, which I 10 MS. ROCKEHBACII: That's it. Thank you. 10 know as an officer of the court I cannot do, and a 11 THE COURT: And I have it, too. I can get my II denand to disclose who, how, where. And we 12 hands on Sc pretty easily, I think. 12 lossediatoly did. Fowler White. I) MR. CASSELL: Your Honor, if I could just be 13 Then I had my paralegal issue an affidavit 14 hoard just briefly. 14 that established chain of custody. I obtained the 15 THE COURT: Co ahead and introduce yourself to 14 Fed Ex receipts for the three boxes that. contained 14 our now Court reporter. 00 this incredible disk. And that's on file with the II MR. CASSELL: Paul Cassell on behalf of three 10 court. 18 victims, EN, EN and Jana DOD. 1m But the e-nails did escalate, and we were 18 We'd like the record co be clear that we're 10 asked -- no, demanded -- &mended on multiple tines 20 joining in the objection co any public disclosure 20 co destroy evidence. I was called unethical sore 21 or reference to chose dOCUT0ntS. :3 than four tire., sanctions were mentioned, the 22 THE COURT: Well, reference and public 23 words improper, unethical, six tines, hid, 23 disclosure are two different things, Mr. Cassell. .ts disturbing, misdeeds. And then last, but not 34 MR. CASSELL: I'm sorry. Any disclosure of :4 least, Hr. Sterols did in fact -- and this is not 21 Elva contents or the substance of these docimants. 15 privileged -- did in fact send an e-mail Indicating Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793792 l 25 that he didn't want a spacial master, declined our I 27 These e-nalls, your Senor, go to the very 2 request for one because it deaf not take a special 2 heart of this malicious prosecution case and 3 ma➢ter to determine that stolen privileged 3 whether It can proceed. 4 document! -- this is for the first weak, or the 4 But returning co Mr. Chinarls, he had three 5 first time the week before trial -- are a opinions after reviewing the relevant documents, 4 inadmissible. I di➢agree. 4 speaking to both la. Link and myself, based on the 7 No court has looked at these o-mail➢. And 7 escalating accusations over the course of four a your Honor ju➢t anted that question, which was • days. And his thre➢ opinions are reflected in 4 really important, did Judge Crow look at these o paragraphs 29, 30 and 31. la in-camera and determine the privilege issue? 10 Ur. Link and Miss Macke:bath have acted in an II So I am very pleased and I agree with II ethically proper manor. That was one. Mater 12 Mr. Scarola for the first time I heard just now a 12 two, the documents in question were not 13 request or an agreement, not even a request, an 13 inadvertently provided nor wrongfully obtained by 14 agreement that these should to looked at in-camera. 14 Mc. Link and Hiss Rockenbech -- IS They absolutely should to looked at ln-camera 15 KR. SCAROIA: Excuse me. Tour Honor. if this 14 because they eviscerate Hr. Epstoin's malicious 16 is going to turn into en evidentiary hearing with 17 prosecution case from proceeding. 17 regard to the ethical propriety of opposing is THE COURT: Mr. Edwards. IS counsel's conduct, I object to this affidavit es to MS. ROCKEHBACH: Mr. Edwards. 19 heersey and I want to be able to cross -exanine Orly 20 B➢t ao di➢t➢rbed was I by the barrage of 20 ethics expert who is of the opinion that retaining 21 e-malls, I reached out to the former ethics 21 privileged docunents known to be privileged listed 22 director of the Florida bar, a trusted colleague. 22 on a privilege log when there is no knowledge as to 23 Tim Chinaris. I have the affidavit. I don't know 23 the source of those documents and a court order 24 if your Honor has. 24 exists saying you're not allowed co have then, I 25 THE COURT: I don't remember seeing lt. 25 want to cross-exanine that expert. 26 28 I MS. ROCKEHBACH: It was very significant 1 THE O0URT: Hell, the objection is sustained 2 petit's,. I was being asked to destroy evidence, I 2 in the sense that I really de went to, as I 3 was being called unethical for the first time in 23 3 Indicated earlier, continue to es beat as we ran 4 y aaaaa and then I saw the word stolen, and honestly 4 conduct the proceedings in a way that befits the s my heart was broken. So Hr. Chinarle has an S known integrity of not only the attorneys here 4 affidavit that I've filed with the Court. be know➢ 6 before us but also the history that has been 7 the infatuation -- 7 pervasive in the 15th Judicial Circuit. So I don't 8 TIM COURT: Is that in this? 8 want this to dis0olve into an ethical discussion as 9 MR. LINK: Your Honor, it's in the package We 9 to whether or not someone committed a➢ne type of 10 delivered right before lunch. 10 ethical violation. That's really not ny focus II THE COURT: Okay. I'll be glad to take a look II today. And that focus is better suited for others 12 at ic. 12 perhaps at a different tine and even perhaps in a 13 MS. ROCKEHBACH: He was the ethics director 13 different forum. 14 for the Florida Bar for almost a decade, authoring 14 Really what has to be atterpted to be divined IS thousand➢ of opinions on legal ethics for lawyer➢ is today is son* type of representation by counsel for IS facing issue➢ with regard to the rule➢ of 10 Hr. Epstein as to knit the source of these l regulating the Florida Bar. 17 demount. here. 18 Ono of the rules that I was thinking about in se HS. SIOCKEMIACH: Yes, your Honor. 19 terms of this hearing was 4-3.3 because both sides, 17 THE COURT: Why were they preserved, how were 30 including Mr. Edwards, who happens to be party but 20 they preserved, for what reason were they 31 should to hold to a higher standard than just a 21 preserved, did that preservation violate or cone 22 simpl➢ party, has a duty to disclose Cinder toward 22 close co violating an order of the bankruptcy 23 the tribunal. That Florida 4-3.3 rule is very 33 court, has the privilege been waived? And then we 24 significant in this case because no one can advance 24 get back again to the Binger analysis. 35 falls statements or positions to this Court. 25 1 did a quick word search, and the Fifth Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793793 1 2 ) 29 District provides us with soon recent direction and assistance and calks about the, issue of surprise. And it says, quote, •The opposing party also 1 2 s 31 office. So it 12 clear we did not improperly obtain thee, nor were they inadvertently disclosed co us. 4 earlier attempted to exclude the surprise testimony • THE COURT: Tina Campbell is your paralegal? 5 by an unsuccessful notion in limlne. Furthermore, a MS. RCCICENBACH: 4010 obtained the three boxes, 4 prejudice in the context of Binger refers co the 4 the three boxes from Fowler White, which contained 7 surprise in fact of the objecting party and is not chat CD htlel. Is at issue. 0 dependent upon the adverse nature of the, r THE COURT: I chink the disconnect we're 1 testimony.• So chat's where we are also going co be , having hero today is not so meth the fact [bac 10 focusing today. 10 Hiss Campbell received the boxes or sonebody got It But I don't want to get into a discussion as 11 notice that the boxes were there -- I2 to present counsel's ethical responsibilities I2 MS. ROCHEMEWCH: It was an issue. 13 unless we have co as It relates CO the origin of I) THE COURT: -- and that sonebody did what they 14 how, If counsel is aware, these documents inclusive 14 did. Md there may have been an issue with regard IS of the e-nails, and particularly as is relates co IS to Fowler White voluntarily turning them over. 14 the 124 allegedly new exhibits being added formally /, Those are things that can be dealt with later on. 17 for the first tine on March 5th, just three days IS Md again, it ray be a different forum than l'n is ago, and certainly outside of the Court's pretrial IS even dealing with here today. is order in corms of timeliness, whether they 19 But what I'd like to know is how Fowler White 20 constitute prejudice. So let's try co focus there, 20 got the documentation, do we to know that, whether 21 If we could. II or not that documentation was obtained or retained 22 And I understand, just so the record Is clear, 22 in a manner that either was in violation of Judge 2) doing this for a long time both as a trial lawyer 2) Ray's order or walked a certain tightrope [bac 24 and is a judge. I understand how feelings can be 24 could be construed as a constructive violation of 25 hurt, I understand how people can take unbrago at 01 chat order. And if we know that, then it would go 30 32 i certain things chat are said. I a long way in me trying to nuke a determination as 2 The beauty of being an experienced trial 2 it relates to Binger and its progeny. 3 judge, if nothing else, is developing a thick skin. ) MS. RCCKEKBACH: Thank you. 4 SC4113CITOS I'll hoar people say somothing and use my 4 THE COURT: So that's really where we need to a name and they don't even know I•m standing there. 5 focus. 4 MR. LINK: That wasn't me, was it, Judge? , I have no problen and I don't think 7 THE COURT: No. And I understand that there 7 Mr. Scorpio has any problem in terms of the fact a are going co be Instances where people aro going to S that you all did your homework; albeit, from his 9 think that I'm the best In the, world and the 9 position, late in the game, and secured this 10 absolute worst in the universe. I've cone to chat 10 infornation from Fowler White. The critical 11 rationale pretty quickly. It cook some LIMA, but II question, though, is why did Fowler White have 12 it was fairly quickly. But I do understand. I 12 these documents, why were they continued to be I) don't want anyone to chink chat I'm not Is held, and was it in violation either expressly or 14 compassionate to the, extent that I recognize that 14 constructively as is relates co Judge Ray's order? 15 there have been accusations hurled here which nay la NS. ROCICEIMACH: Thank you, your Honor. 14 be minimally considered offensive and accusatory. Ic Mr. Link has studied this issue and will address I/ But let's move beyond that for now and let's get to I' that. 18 soon of the issues that I discussed earlier that we I. KR. LINK: So, Judge, let no see if I can 19 can focus on relating to decisions chat I'll have Is clarify a couple of things. 20 CO sake concerning the potential admissibility of 20 First, these exhibits chat we're talking about at this evidence. 21 from the disk, they absolutely were just listed on 22 MS. ROCHENBACH: Thank you, your Honor. I 22 our exhibit list. They were just located by us in 23 appreciate chat. 2s the last week. Romivor, on our exhibit list it's 24 And we have established the chain of custody 24 alweys been a general category, as Mr. Scorpio 25 through the affidavit of Tina Campbell from our ,5 said. The reason there are 149 specific exhibits Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793794 l 33 is the clerk required it. So -- i 35 been doing that, sir. 2 THE COURT: The clerk required it? 3 THE COURT: Okay. 3 MR. LINK: Specific. You have got to do -- 3 NR. LINK: So we are not in violation of the 4 THE COURT: The clerk, you're saying? Or the 4 Courc'a order. Mr. Scarola and I again agreed co S Court? 2 de this. 4 MR. LINK: The Court. a So let's talk about Fowler White because it is 7 THE COURT: Ch, okay. I thought you wore 7 as clear as mud. It is not as clear as Hr. Scarola 4 saying -- 6 says. Neve is why. If you look at his -- a MR. LINK: It's called the clerk's exhibit * THE COURT: That metaphor. I'm not ouzo I IC lint for the Court, but the Court did it. Io understand clear as mid. II THE COURT: So in conjunction with an order II NR. LINK: It's not clear. That's the point. 12 that I had made earlier in the proceeding that I 12 It's not clear, frankly. So it is not as sinple 13 was not going to allow general catchall typo➢ of 13 and clear as Kr. Scarola mays. And I want to show ia exhibit identification, I required that each and 14 you why. ', it every exhibit be specifically listed. And we've gone through myriad exhibits in our quo➢t to IS 14 I honestly cannot tell you, I can't, where the disk cane inn that end up in Fowler Mite's file. i7 determine whether or not, for example, the Fifth 17 I can't. We have looked for every piece of is Avondmont privilege Is going to be recognised and 10 connonication, correspondence, we've gone through is other lasuea having to do with adodaalbillty. And 19 their boxes three times trying to answer that 20 that was generally followed, to my recollection, 20 question. We have reached out to lawyers for 21 because I dealt with many specifically identifiable 11 Fowler White. They have no =gory of it. So we, 21 exhibits. So yes, I agree that that wa➢ something 12 like Mr. Scarola -- 23 that the Court had a specific interest in and has 13 THE COURT: Excuse rm. Is Mr. Ackerman still 24 always taken the position that all cards are going 24 actively practicing? 25 to be on the table in a timely fashion ➢o that, 25 NR. LINK: He ls, yea. And we reached out to 34 36 I lumber ono, first and foremost once all the cards I Soo Ackerman. Hr. Ackerman. Sorry. We reached 2 are on the table, the law favors settlement, and it 2 out CO Mr. Ackerman. 3 may coma to fruition, and has more often than not 3 Here is why it's confusing. And I think this 4 resulted in an amicable resolution to a case. And 4 is really irgortant co understand what happened. 3 as importantly, both aides are adequately prepared 5 when the trustee took over the tiles, there 6 so that, as I mentioned in this Pollard case, no 4 wan an understanding by Hr. Edwards and his firm 7 ono is unduly surprised by something that cones 7 that [hove would to about 5,000 o-nails, and shay II before them at or near the beginning of trial. II agreed to do a -- go through then and do a 9 MR. LINK: Yoa, air. So that la why wo did 9 privilege log. What's missing from Mr. Scarala's 10 that. 10 timeline la that in November 2010 Edward➢ informed 11 The second thing I want to point out to the II the bankruptcy court that the trustee had produced 12 Court is that Kr. Edwards did the same thing and 12 74,000, 74,000 page➢ of docianonta on two compact 1) filed exhibits after the order, just like wo did. 13 disks. Not ono. On two. 14 And I'm not complaining -- 14 So then what happened, because of the volume, IS THE COURT: Well, if you're not complaining IS Mr. Edwards and his firm gods in and says, "Judge, 14 about it -- 14 wo nood mere time. No did not know we wore going II MR. LINK: The reason I want to explain is II to get 74,000 pieces of paper and we need tine to IS because in our pretrial stip I'm of the mindset IS go through then.• 19 when we roach agreement, we have an agreement. And 19 THE COURT: I nay have lost you. The 74,000 20 in our agreement, your court order says no 20 page➢ wore self-generated from the Rothstein firm? 21 additional exhibits unless the parties agree. In 21 MR. LINK: Yoa. And delivered by the trustee 22 the pretrial ➢tip Mr. Scarola and I agreed wo 22 to Kr. Edwards. 23 reserved our right to add additional exhibits. So 23 THE COURT: And Mr. Edwards, you're 24 in compliance with the pretrial atip and this 24 suggesting, indicated that they need more time to 25 Courts' order requiring us to identify them, we've 23 review the o-malls or whatever documents -- Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793795 1 2 3 i 37 MR. LINK: Correct. THE COURT: -- Choy nay have encompassed, and to raise objection➢, and that forum was the bankruptcy court. i 2 3 4 39 says to him, •You, special nastor, review all these 615CUMWIt2.. Just Ilke he said here, he said it ten tines, •'Ale have nothing to hide. You decide Mat should be turned over .• The trail goes cold. I 5 MR. LINK: All this ➢tarted in the bankruptcy a can't find a letter or Comonleation from the 4 court. 4 spacial Master that says, •I looked. Here they 7 So when Hr. Scarola ➢ays there was ono disk 7 aro.• But I know this: The disk that was sent to 4 produced by the trustee with 27,000 e-mails on it, 0 Fowler Whitt. to copy had no Bates stern. 5 that's not true. There aro two disk➢ and there's o When you look at the judge's order from Judge le 74,000 e- . That's what Kr. Edwards io Ray that Nr. Scarola pointed out, it says Fowler II represented to the Court. I haven't soon these II Nhite will print a hard copy of all the docunents 12 disks, but nut's what Mr. Edwards represented. 12 contained on the disk with Bates warners added. 13 SO what happons after that is Chore is a 13 That's how they were going to do it. 14 complicated negotiation between the Fowler White la THE WORT: And that disk, I presume, that II firn and Mr. Farrar, on behalf of the Farmer Jaffe 15 you're alluding to did have Bates numbers on then. 14 fife, about how aro Choy going to take these 16 I'n talking about the Individual Oak-manta. 17 documents, which are not Bata➢ stamped, not Bata➢ 17 KR. LINK: Tee, air. They're all Bates 14 Staped, and they wanted a hard copy to review so 10 stormed. So they were not the disks It they could make a privilege log, but they didn't 19 provided -- again, I can't day they're not. I'm 20 want to pay for it. The trustee didn't want to pay 20 not testifying. This is Scott Link's forensic 21 for it. 21 review. 22 Mr. Epstein volunteered with the special 22 THE COURT: But again, Mr. Link, 23 -- actually, Fowler White -- but 23 respectfully -- and I appreciate you're trying co 2d Mr. Spetele.0 counsel volunteered that they would 24 put together and plate together sarething that 25 use choir machine. to print out, print out from the 25 transpired Seven years ago -- the problem /mill 38 40 i disk that had no Bates stamps on then, docanenta, 1 remains the same. Frankly, it doesn't really 2 and Hr. Farrar agreed to that. 2 natter to this Court what format it was, wto. 3 So they print the documents out -- long before 3 formatted it or to whoa it was supposed tote 4 our time, Judge -- they print the doctmenta out, a a intended. I'n sure there may be cases even after 5 sot is given back to the trustee, and a set is S this Morley rase that we'll be talking about 4 given to Farmer Jaffe. The machine that print➢ it, 6 tOVOITON at length et the bee conference, but that 7 according tO the magistrate and all the 7 case stands for the proposition globally of the 8 communication➢, doesn't retain any imago. So we 8 'sanctity in that particular case of the 9 start with two disk➢. To make it more complicated, 9 attorney/client privilege to something so 10 there was three. One had a problem. But let'➢ go 10 rudimentary as whether or not en attorney referred IL with two disks and 74,000 page➢. 11 a client to a given doctor for treatment. And the 12 They print them out. Hard copy documents. 12 Senna,. Court has clearly stated that Information 13 Ono to the trustee, one to Farmer Jaffa. The 13 la privileged and will not be divulged. Id magistrate want➢ a copy, and so you will see the 14 91A. LINK: Yes, sir. I waa just trying to 15 magistrate got➢ two disks: One with 25,000 image➢ 15 answer your question about the disk. 14 on it and ono with -- I can't toll you how many 16 THE COURT: Okay. Sochop:ant that l'n 11 images bacillar' the special Meter ➢aye, •2 didn't 17 trying to Mike is then l'n saying it really doesn't IS look at it.• 10 matter, all of those Other details, what mutters to 19 I think -- this is Scott Link guessing -- I 19 the Court le, again, Judge Ray's order relative to 20 want to be clear about this -- I think the disk 25 the sanctity of thaws documents, for lack of a 21 that ends up at Fowler Mite was the Spacial 21 better term, the protection of thole OOeUfelltil at 22 'a disk. And hero is why I think that: A, 22 all costs, and that Fowler mite shall not with the 23 it was in a file that said Special Nestor. B -- 25 throat of sanctions retain any of those documents. 24 Mee Of which makes sense to no until we put this 24 It Says here, 'Should it be determined that 25 together. B, Hoare'➢ a hearing where Mr. Scarola 2$ Fowler White or Epstein• -- so not only does it go Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793796 I 41 co Fowler White, but lc goes to Epstein -- and I 43 identify by Bates nadaer if there are any 2 constructively, If not explicitly, by this order 2 attorney/client comnunications and we would ) extends to Mr. Epstein's legal representatives, a segregate then. The response I got, every page is 4 from this Court's interpretation. 4 an attorney/client eormunloation. So that's one. S MR. LINE: Yea, sir. a THE COURT: But that's not what this order 4 THE COURT: 'Should is to determined chat 4 says, Mr. Link. The order doesn't say anything 7 Fowler White or Epstein retained images or copies 7 about privileged documents. 0 of the subject documents on its computer or 4 KR. LIIIK: Judge, I understand that. I otherwise, the Court retains jurisdiction co award o THE COURT: The order says that Fowler White to sanctions in favor of Farmer, Brad Edwards or his to will not retain any copies of the documents II client,' end quote. 13 contained on the disk provided to it nor shall any 12 MR. LINE: And I agree with that. the 12 lodges or copies of said documents be retained In 3.3 bankruptcy court reserved chat. %Tat I'm I) the mammy of Fowler White's copies. And we 14 suggesting co the Court is I don't chink it 'a as 14 already went through the sanctions. is clear as Hr. Scarola said. And he nay go co Judge 15 KR. LIHK: But we don't know -- here is the le Ray and Judge Ray will have a hearing. Based on 1, disconnect: Me don't know as we sit here that the I' what we've looked at, I don't believe it's as clear J, disk that we located there wasn't handed to then by is that that's what they did because it's possible, le Special Master Carney after Mr. Scarola gave him II based upon what I've read -- 19 the fob end said look at it and give then whatever 20 THE COURT: That Fowler White did? <0 you think is okay because the maJority of the 21 MR. LINK: Yea. <1 documents we've looked at have to deal with 22 THE COURT: So are you suggesting to no <2 scheduling and sporting events and going out 2) chat -- so chat I'm understanding correctly -- <1 drinking and all kinds of things. It is not a 24 MR. LINE: Yea, sir. I'm not here :4 group of documents that are on the privilege log. 25 representing Fowler White. 2a Here is the second thing we learned -- 42 44 t THE COURT: I understand. But you're here I THE COURT: And is that going to serve as the 2 representing Kr. Epstein, who by virtue of this 2 conduit to attempt to adsit these documents into 3 order chat is being highlighted in part on the ) evidence in the face of the order that I have Just 4 ELMO, chat Fowler White did what it was supposed to 4 read? 5 do pursuant to that order, returned everything chat S KR. LINK: Your Manor, I see the order. What 4 lc was supposed co return, but through sone 4 I'm trying to get across -- I'm doing a lousy Job. 7 happenstance had the disk containing the very 7 THE COURT; No, you're not. a Information that was, the source of Judge Ray's 8 KR. LINK: -- is that I can't tell you. 9 order and scamhow, therefore, should be exonerated 9 THE COURT: Try to get to the point that I'n 10 by virtue of the fact that because we really don't 10 really -- 11 know how Fowler White may have gotten it, but 11 KR. LINK: I don't think that we can conclude 12 assuning Fowler White did what lc should have done, 12 today that this disk is a result of their violating I) miraculously this disk turns up in Fowler White's la this order. This disk could have been as a result 14 files and hence we should essentially ignore the 14 of the special master looking at it and saying, '1 IS dic