25 IN THE CIRCUIT COURT OF THE

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 502009CA040800XXXXMB JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, vs. SCOTT ROTHSTEIN, individually; BRADLEY EDWARDS, individually, Defendants/Counter-Plaintiffs. TRANSCRIPT OF PROCEEDINGS DATE TAKEN: THURSDAY, MARCH 7th, 2018 TIME: 10:07 a.m. - 12:08 p.m. PLACE 205 N. Dixie Highway, Room 10D West Palm Beach, Florida BEFORE: Donald Hafele, Presiding Judge This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were reported by: Sonja D. Hall Palm Beach Reporting Service, Inc. 1665 Palm Beach Lakes Boulevard, Suite 1001 West Palm Beach, FL 33401 PALM BEACH REPORTING SERVICE, INC. EFTA00801275 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES: For Plaintiff/Counter-Defendant: LINK & ROCKENBACH, P.A. 1555 Palm Beach Lakes Boulevard, Suite 301 West Palm Beach, FL 33401 By KARA BERARD ROCKENBACH, ESQUIRE By SCOTT J. LINK, ESQUIRE For Defendant/Counter-Plaintiff: SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 By JACK SCAROLA, ESQUIRE By DAVID P. VITALE JR., ESQUIRE By KAREN TERRY, ESQUIRE For Defendant/Counter-Plaintiff: HATCH, JAMES & DODGE, P.C. 10 West Broadway, Suite 400 Salt Lake City, UT 84101 By PAUL G. CASSELL, ESQUIRE For Jeffrey Epstein: DARREN K. INDYKE, PLLC 575 Lexington Avenue New York, NY 10022 By DARREN K. INDYKE, ESQUIRE For Jeffrey Epstein: ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Ave. South, Suite 1400 West Palm Beach, FL 33401 By JACK A. GOLDBERGER, ESQUIRE PALM BEACH REPORTING SERVICE, INC. EFTA00801276 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Good morning. Have a seat. Thank you. Needless to say the recent barrage, as opposed to flurry, of activity that has transpired is of extreme consternation to the court. It has caused me to have to engage in an inordinate amount of time to the exclusion of other matters that needed my attention. While the Court understands the gravity of the issues that have transpired, it is with extreme consternation and concern that they have transpired on the eve of trial, a trial that has already been continued once, matters that could have been avoided had timely action been taken. And the burden on the Court to try to get through what would be approximately four feet of documents is extensive and onerous. I have done the best that I can to go through the materials, and I had some assistance, which I appreciate, from one of our staff attorneys, in trying to simply wade through the extensive, complicated, and in many situations, years' old documents, some that go back almost a PALM BEACH REPORTING SERVICE, INC. EFTA00801277 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decade in terms of their age, and much of which I'm reviewing for the first time. So it's against that backdrop we will proceed. We will hear the motion filed by Epstein to remove the case from the trial docket relative to Florida Rule of Civil Procedure 1.440 first. MR. SCAROLA: Good morning, Your Honor. With the Court's permission, believe it or not, there is one agreed matter that we would ask the Court to address first. I would like to introduce to Your Honor University of Utah Law Professor Paul Cassell, former Federal Judge Paul Cassell, who will present that matter to the court. MR. CASSELL: Good morning, Your Honor. Since this is an unopposed motion, it will just take 10 seconds to present. I'm here pro hac vice, which I'm not sure the Court is concerned about. We do have a motion to seal the pleading and related emails. It's unopposed. We ask that it be granted. Temporarily sealed until you reach a ruling. THE COURT: That's fine. I will need PALM BEACH REPORTING SERVICE, INC. EFTA00801278 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 an order in that regard, please. All right, Ms. Rockenbach. MS. ROCKENBACH: Thank you. May it please the Court. Good morning. Your Honor mentioned the barrage that the Court has received. And it's the exact words that I have on the top of my yellow pad to describe the email flurry that has occurred within the last four days, which have truly made me sick. I could not wait for this hearing to occur because of the fact that I know this Court does not need any more paperwork. You need to see the attorneys and understand the chain of evidence and how it was reprehensible that either I or my law partner has been accused of stealing documents. That has made me sick. So I look forward to discussing the privileged nature of the documents. And I thank Mr. Cassell for being here today. Your Honor, this is Mr. Epstein's motion to remove this case from the trial docket. It was prompted by Mr. Edwards' motion to separate the trials, which was PALM BEACH REPORTING SERVICE, INC. EFTA00801279 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 filed on Friday, I believe, for the first time identifying that the fact that the default that Mr. Epstein has against Mr. Roth was on the original complaint and it no longer applied. Mr. Edwards pointed out to this Court and to Mr. Epstein -- he is absolutely correct -- that Mr. Epstein's operative complaint is the Second Amended Complaint to which there is no default. What rule 1.440 tells this Court to do is to look at the time that Mr. Edwards moved -- it's maybe a notice to set trial. In this case it was a motion to set cause for trial -- was the case at issue. Rule 1.440 is one of the most strictly complied with mandatory rules of civil procedure, which has been recognized by the Fourth District Court of Appeal, and it's one of those rare instances when a petition for writ of mandamus is appropriate when it's not complied with. So we need to look at the pleadings and not try this case twice. This case was not at issue when Mr. Edwards filed his PALM BEACH REPORTING SERVICE, INC. EFTA00801280 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 motion -- for the obvious reason, when he filed his motion to set the case in the above -styled cause of action for trial on May 24th, 2017. There is no dispute. And Mr. Edwards has actually pointed it out, Mr. Epstein did not have a default against Mr. Rothstein. Contrary to what Mr. Edwards' suggestion is, is to cure this issue -- THE COURT: Mr. Epstein did not have a default against Mr. Rothstein. MS. ROCRENBACH: Rothstein, thank you very much. Contrary to what Mr. Edwards has suggested, there is no cure for a defective motion to set a cause for trial. You cannot cure it. There are some cases that have been cited. In fact, both sides. I cited Labor Ready from the Fourth District Court of Appeal in my motion. And I understand Mr. Edwards intends to rely upon it. But this was an authored decision by Judge Melanie May from the Fourth DCA. And that case has great language to guide this Court PALM BEACH REPORTING SERVICE, INC. EFTA00801281 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 on. In that case Judge May wrote, "We do not quarrel with those cases or their holdings." Your Honor, would the Court like a copy of this case to follow? THE COURT: Sure. MS. ROCKENBACH: Thank you. May I approach? THE COURT: Yes. MS. ROCKENBACH: I have a similarly highlighted copy for counsel. So in that case, the Fourth DCA has said, "We don't quarrel with genuine parts of prior Fourth DCA case recognizing the mandatory nature and compliance, strict compliance with Rule 1.440." Judge May wrote, "We don't quarrel with Bennett versus Continental Chemicals." However, we point out that none of those cases involve the case that has been pending at issue for years. Those cases were at issue. Meaning, they had a default. They had an answer. They had a final pleading. Twenty days had run. Another 30 PALM BEACH REPORTING SERVICE, INC. EFTA00801282 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 days had run. Compliance with rule 1.440, check the box. What Judge May said in this case, the Labor Ready case, there was a last minute technical amendment to the complaint. And guess what, they went to trial. It was waived. That case does not apply. Those facts do not control. What you have before Your Honor is a -- no waiver, no waiver. You have an objection that Mr. Edwards has pointed out, rightfully so, the case is not at issue. What I filed with the Court immediately, simultaneously with the motion to remove this case from the docket was a proper motion for default against Rothstein. There is no case that supports Mr. Edwards' position to this Court about severing a case in order to retroactively make it at issue. That doesn't happen in the law. The law says, in rule 1.440 in the Bennett case and the Gawker case from the Second DCA, says that this Court has to look PALM BEACH REPORTING SERVICE, INC. EFTA00801283 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 at May 24th -- and that is the salient date that this Court must look at -- because that's when Mr. Edwards hastily moved this case and set the above -styled caused of action for trial, May 24th. To be clear, Your Honor, Mr. Edwards did not move to sever at that time. This case has been pending for some eight plus years. He has never before tried to sever. He, at that time, on May 24th, instead of pointing out the lack of at issue, and by the way, you need a default, he moved the case. He didn't even move his counterclaim to set for trial, he moved the case. And then further, to evidence Mr. Edwards' intent to try this case globally, main claim and counterclaim which is appropriate, because the counterclaim arises from the main claim -- he entered into a joint stipulation indicating that that's how the case is going to be tried. So it was not Mr. Epstein who caused this last-minute, 11th-hour, oh, my gosh, we are not at issue, it was Mr. Edwards who PALM BEACH REPORTING SERVICE, INC. EFTA00801284 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pointed it out. I researched it over the weekend. And on the very next business day, as soon as I possibly could, I filed the motion to remove the case from the docket. I then immediately moved to default. I have an order for the Court to sign to enter a default. Served it on Mr. Rothstein's counsel of record, Marc Nurik. And we will then be ready once this Court enters the default, and presumably either party notices it for trial in 20 days when it is then at issue, this Court can then set it no less 30 days. That is the mandatory nature of the rule. I regret we're here, but this is a strict compliance rule and we have to be at issue. And, Your Honor, the last thing either side or this Court wants is to try this case twice. THE COURT: Despite the representation, Ms. Rockenbach, that you made in your motion to continue, that Plaintiff and his trial counsel will not seek another continuance. PALM BEACH REPORTING SERVICE, INC. EFTA00801285 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We will be to ready to try the case in 90 days -- MS. ROCKENBACH: Yes. THE COURT: -- quote, end quote. MS. ROCKENBACH: Yes. THE COURT: Why was that not pointed out to me upon a review of the docket, presumably a review of the docket, to determine whether or not there was, in fact, a need to strike the trial notice at that time, instead of gearing up, instead of spending an inordinate amount of court resources, and now taking the position that because what in essence was dilatory conduct on the part of the Epstein trial counsel team, dating back to 2011, now constitutes reason for this case to be stricken? Does that not sound inequitable? Does that not sound inappropriate? Does that not sound specifically contrary to the quoted language that I have just indicated here? MS. ROCKENBACH: The quoted language as you indicated, Your Honor, I made knowing that there was a default. Mr. Edwards at that time never said PALM BEACH REPORTING SERVICE, INC. EFTA00801286 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that default does not apply to the operative complaint. And I never, ever thought that it did not. THE COURT: Isn't that your responsibility? Isn't that the responsibility -- before you make that statement to this Court and make the representation that in light of the fact that you guys were getting up to speed, that part of getting up to speed, would have been your responsibility to check the adequacy of the pleadings -- and as the case that has been cited -- at least one of them indicate, the responsibility would have been to file a motion to strike the case -- strike that. A motion to strike the notice setting trial or the trial order seasonably and timely so that we would not have been in this position in the first place? It would seem to me that you are essentially creating the error yourselves by not doing due diligence. MS. ROCKENBACH: I wish I had seen it. I knew there was a default against Mr. Rothstein, and that he was in federal PALM BEACH REPORTING SERVICE, INC. EFTA00801287 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prison. Never before did Mr. Edwards raise this issue that he raised on Friday. And by the way, Your Honor, the fact that Mr. Edwards has raised it, he is using it as an excuse to sever the trial, which does not cure the defect, and is an appropriate manner to try this case in any event. Mr. Edwards is the one who pointed out the improper defect, who could have raised it much sooner. Your Honor, I wish I had seen it. I wish I had seen it. And we are ready to try the case, but that's not the issue. Mr. Edwards having raised the defect now, we could go through this trial, get a verdict for Mr. Epstein, and I believe we would, and then Mr. Edwards could appeal on the defect because he has raised it. So there is but one action that the Court can take, and that is -- THE COURT: If that transpires, then I quit. Then I am resigning my position. Because if I can't trust what was written already here by you, that you -- that PALM BEACH REPORTING SERVICE, INC. EFTA00801288 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Epstein, as the Plaintiff, and his trial counsel, will not seek another continuance, and be will be ready to try the case in 90 days -- quoted language, pledging to this Court that otherwise this case is ready to go -- and now we are faced with this defect after all of the time and expense that has been made here and spent here, is really a travesty. And while I say that tongue in cheek in terms of my resignation, this would -- it would be astounding to me if that was, in fact, the case. MR. LINK: Your Honor, may I have permission to stand next to my partner on this? THE COURT: Sure. Of course. MR. LINK: Thank you. Judge, I want to make sure that the record is clear. We are not asking for a continuance. The words that we gave you, we are standing by. This is not a motion for a continuance. And the words that my partner told this Court were absolutely true when she said them. They are absolutely true PALM BEACH REPORTING SERVICE, INC. EFTA00801289 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 today. This is not us not being ready. This a legal defect that cannot be cured. And I apologize to the Court for where we are and what we have done. And I'm afraid we are going to spend a lot more time together on this case. But I want this Court to understand that when my law firm says something, we mean it. We absolutely do. And we are not moving for continuance. But this case cannot go to trial with this defect, that's just the law. But I don't want this Court to think for one second that my partner or I would ever mislead you or say something we didn't mean. I have been accused of enough of that this week. THE COURT: The point that I'm making -- nobody is accusing you. MR. LINK: Not you, Your Honor. I've been accused of stealing documents and a crime. THE COURT: I understand. MR. LINK: And that's the first time in 32 years. PALM BEACH REPORTING SERVICE, INC. EFTA00801290 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: And I appreciate that. I understand everybody's emotions are rather high, based upon the fact that all of this has transpired in such a short amount of time. But again, at the same time, as I said before, it seems to me to be highly inequitable -- and I understand your argument is legal in nature -- but highly inequitable to come before the Court and suggest that by way of dilatory conduct on the part of the Epstein trial team in not securing the technicality that we are speaking about, and that is a default against an individual who will remain in prison for the rest of his life. Who is, to my knowledge, based anecdotally, only based on anecdotal evidence, is penniless and has been disgorged of any assets that he has and that his family has, that somehow because of this technicality we're caused to put this case back and not try the case after, again, an inordinate amount of time and expense, which is in essence taxpayer money, of which this Court has been and continues to be a PALM BEACH REPORTING SERVICE, INC. EFTA00801291 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 steward of those expenses and time. Again, coupled with the fact that it was represented to this Court that there would be no further delays and that the case would be ready to try. That tells me and that represents to me, that counsel has done their due diligence. Part of the motion said, "We have heard the Court loud and clear, now we" -- Link and Rockenbach -- "are on the case, with support from the Gunster firm, and we will not allow the same type of conduct that transpired earlier, which the Court was critical of, happen again." That pledge to this Court means something to this Court. That means that the docket has been assiduously reviewed, and that everything else, short of gearing up for trial on the substantive issues that are before this forum, have been resolved, rectified, and that certainly we are not going to be reaching back seven years on a technicality to somehow thwart the efforts of the Court in trying to moved forward on behalf of both sides to resolve a case that PALM BEACH REPORTING SERVICE, INC. EFTA00801292 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 has drawn a significant amount of public interest and that has been pending for -- MR. LINK: Nine years. THE COURT: Nine years is too simple. Three thousand and thirteen days, as of today. MR. LINK: Yes, sir. Your Honor, if I may. Because what is really important to me, more than anything in this case, is our reputation. And I want this Court to understand that we are not moving for a continuance. THE COURT: I didn't say that was your position, which is why there is a frustration here. Continuances are discretionary under the law. I have wide discretion. The Rule of Judicial Administration of this state -- and I do my best to follow them. And you have probably heard me at 8:45s make this statement, at least if not expressly, impliedly, that the trial courts of this state shall have a firm continuance policy. Now, while that may not be popular amongst the bar when the Court enforces that PALM BEACH REPORTING SERVICE, INC. EFTA00801293 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rule, it is nonetheless a rule of the Florida Supreme Court, and I do my best to follow the law, despite popularity concerns, of which I have none. MR. LINK: And we appreciate that, Your Honor. THE COURT: So -- MR. LINK: Sorry, I thought you were done. THE COURT: I am not exonerating the movant here, by any means. You're the first one -- MS. ROCKENBACH: The movants being Edwards or Epstein? THE COURT: I'm talking about Edwards. The movant setting the case for trial. MS. ROCKENBACH: Understood. THE COURT: Because Edwards has the same responsibility to the Court, to this community, to the taxpayers, to the public, to my constituency, to assiduously review the docket, to ensure that the notice is being provided in accordance with rule 1.440. So by no means am I exonerating anyone PALM BEACH REPORTING SERVICE, INC. EFTA00801294 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here. It's just, again, a cumulation of having to go through what we have gone through together. Up to now, what I have tried to maintain, a civil, professional and efficient atmosphere despite the nature of the case, despite pejorative comments that were made earlier, which the Court has indicated will not be tolerated, and that has been followed carefully by all concerned, and I appreciate that very much. But here we are. I am familiar with the law. I am familiar with the statute -- strike that. I am familiar with the rule. I am familiar with the comments to the rule. I am familiar with the case law pertaining to the rule. I will allow you time for rebuttal, if needed. MS. ROCKENBACH: Thank you, Your Honor. MR. LINK: Judge, thank you for letting me come up here. THE COURT: Mr. Scarola, again, I share my frustration with you and the Edwards' legal team, as well, as far as this PALM BEACH REPORTING SERVICE, INC. EFTA00801295 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conundrum. It is disappointing that a firm of your stature, an attorney of your stature, of which I have an abiding respect for all of those who are serving their clients in this case, that, again, the docket was not assiduously combed, and we are left here today with the very real possibility of this case not being tried as scheduled. Your response, please. MR. SCAROLA: Yes, sir. Your Honor, let me first of all point out that rule 1.440 only permits a party to notice a matter for trial once at issue. And at the time our notice was filed, we were not a party to the case that was pending against Mr. Rothstein. And quite frankly, had no concern about that case. It was simply not a matter that we cared about, and quite frankly believed, for the reasons that Your Honor has referenced, that it would never really be tried. This is a defendant who has absolutely no ability whatsoever to ever respond to a judgment against him. PALM BEACH REPORTING SERVICE, INC. EFTA00801296 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And our concern with regard to Rothstein arose when we were informed of the witnesses that were intended to be called ostensibly in the case against Mr. Rothstein, which was a damage only claim for a conspiracy to commit abuse of process, a claim, which if it had been defended, would have been thrown out because there is no tort because of the litigation privilege for conspiracy to commit abuse of process, and there could not possibly, under any conceivable version of the facts, ever be a claim for damages by Mr. Epstein in connection with that. Nonetheless, we are told that there are going to be -- there's going to be testimony from Mr. Rothstein -- excuse me. From Mr. Epstein's victims in that portion of the case, that Mr. Edwards is going to be called in that portion of case. And what became apparent to us is, that an effort was going to be made to use the rouse of a claim against Rothstein as to which we would have no standing to object, to insert into the record information that PALM BEACH REPORTING SERVICE, INC. EFTA00801297 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 would never be admissible in the claim of Bradley Edwards against Mr. Epstein. It became a particular concern to us, because once a default is entered, the jury is obliged to assume the truthfulness of the facts that are alleged in the complaint. We are obviously contesting those facts. So what was going to happen if there was going to be a focus on the underlying allegations -- THE COURT: Against Rothstein? MR. SCAROLA: Against Rothstein -- is that the same jury was going to be told, you must accept these allegations; and then they were going to be told, you can't accept those allegations. And that obviously in and of itself created a need for us to approach the Court and ask that these claims be severed. We then determined that there was no valid default ever entered against Mr. Rothstein. It didn't happen. And that's not something, again, that was ever a concern to us. I don't represent him. I never want to PALM BEACH REPORTING SERVICE, INC. EFTA00801298 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 represent him. I am uncomfortable about the idea of having to be involved in a trial in which I might have to be raising objections that would appear to be objections on behalf of Rothstein to what's going on in that first portion of the case. So we found out about the procedural defect. Now the issue becomes, does Your Honor have the ability to address those problems? And the answer to that question is clearly yes. Severance of a permissive counterclaim -- and there is no doubt about the fact that this is a permissive counterclaim -- rests within the sound discretion of the Court. THE COURT: The question that I had was, in reviewing the material, is this still a counterclaim at all, albeit technically brought as same, because Edwards no longer is a defendant in the matter brought by Epstein? The sole defendant, as I understand it, on a one-count issue is Rothstein. MR. SCAROLA: Yes, sir. I refer to it PALM BEACH REPORTING SERVICE, INC. EFTA00801299 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 as a counterclaim only because that's the procedural posturing in which it arose. But, when a voluntary dismissal was taken with regard to all claims against Bradley Edwards, it's no longer a counterclaim. It's now our claim against Mr. Epstein. THE COURT: And while it has its genesis in the original action filed by Epstein against Rothstein, Edwards and III the fact that simply because it has its genesis there, as I was trying to think this through among the other materials that I had to review -- and they were substantial -- is that can it not be argued that the only connection between Rothstein's claim bought against him -- strike that. Epstein's claim brought against Rothstein, the only connection that is even arguable, is that, in fact, the Edwards' case had its genesis in the fact that Epstein originally brought the claim against Rothstein, Edwards and III., and then voluntarily dismissed the case at the eve of summary judgment. PALM BEACH REPORTING SERVICE, INC. EFTA00801300 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I.e., is there any law that supports the proposition that this would, in fact, be a separate action at this juncture having no technical, even legal connection, between the claim brought by Epstein against Rothstein for some type of conspiracy issue, and what is now a separate malicious prosecution claim -- albeit having its genesis in the original Epstein action -- but having nothing shared at this juncture, either technically or legally, other than a case number? MR. SCAROLA: Your Honor, I think that that is flawless logic. We are here to try our claim against Epstein on a fourth amended, quote, unquote, counterclaim that is really a separate action. But while I understand the Court's reasoning and agree with it, we don't need to try to technically call this something other than what it was derived from, and that is a counterclaim. Because the law is very clear that this Court has the discretion to sever for separate trials a counterclaim. And that's PALM BEACH REPORTING SERVICE, INC. EFTA00801301 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the second -- excuse me -- that's the Third DCA case that we cited to Your Honor, Turner Construction Company versus ENF Contractors. And let me hand -- let me hand the other copy of that to Your Honor. So we can assume -- without needing to reach the argument as to whether this is or is not still a counterclaim -- we can assume that it is a counterclaim. There is no question about the fact that it's a permissive counterclaim. And we are in a position, whereas the Third District Court of Appeal observed, it is within a trial judge's discretion to sever a permissive counterclaim from the main claim if there is no evidence of prejudice. And I was very pleased to hear Mr. Link and Ms. Rockenbach stand before the Court and tell you, We are ready for trial. Because that's what they told you. They told you that back -- they told you they would be ready back in December, and they are telling you again, We are ready for trial. We are not asking for a continuance. PALM BEACH REPORTING SERVICE, INC. EFTA00801302 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We only want to remove a technical defect that might have us try this case twice. Well, I assure Your Honor, there could not be a clearer example of waiver on our part of any technical difficulty than I am asserting to the Court right now that could never and will never be the basis for any appellate argument on our part. So, next, the Court goes on to say, "An appellate court will not interfere with procedural rulings of a trial judge, unless a party is deprived of a substantial right by the procedure employed." So let's look at the procedure employed, and what the unanimous Fourth District Court of Appeal told us in Labor Ready versus the Australian Warehouses Condominium Association. THE COURT: And again, the mule of me wading through these documents, if you can hand me cases as we go along, I will appreciate it. MR. SCAROLA: Absolutely. THE COURT: Thank you. MR. SCAROLA: This is our appellate PALM BEACH REPORTING SERVICE, INC. EFTA00801303 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 court speaking through Judge May, as I said, an unanimous opinion joined in by Judge Gunther and Judge Farmer. And I am looking at the third page, the last page of this copy, Your Honor, and it's the highlighted language. "This is not a case where the case had never been at issue." Nor is this. "This is not a case where the parties did not have sufficient time to prepare." Nor is this. "This is not a case where anyone was prejudiced by the technical amendments to the complaint." There they were talking about adding a punitive damage claim to the complaint. "In situations where the parties have received actual timely notice of the trial, they are precluded from arguing prejudice based upon a technical violation." Here we don't concede that there is any technical violation at all. But even if there were to be, the Fourth DCA says not a basis to disturb a trial court decision when there is no evidence of prejudice. And we are being told no prejudice. PALM BEACH REPORTING SERVICE, INC. EFTA00801304 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Speak to me again about the issue where, in a setting such as this, if both matters were to be tried together, the position that your client would be in having to prosecute his claim and in essence try potentially try to defend Rothstein at the same time. MR. SCAROLA: Yes, sir. I think that that's really clear. The allegations against Mr. Rothstein are, even in this later version of the complaint, basically identical to the allegations that were made against Mr. Edwards. It is the complaint upon which a voluntarily dismissal was taken as to Mr. Edwards. So the jury is told in a default circumstance all of the allegations must be accepted as true. And the only issues that arise are issues with regard to causation and damages. We are contending that there could be -- first of all we are contesting the underlying allegations. The jury is being told accept them with regard to Rothstein. You can't accept them with regard to PALM BEACH REPORTING SERVICE, INC. EFTA00801305 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Epstein, they are contested. So that's the first problem. One jury being told to assume two different things. The other problem is, we are contending that there could be no damages incurred by Mr. Epstein as a result of anything that went on with regard to a Ponzi scheme in which he was not an investor. We are also contending nothing about what went on at Rothstein, Rosenfeldt & Adler can form the basis for a claim because of the litigation privilege, absolute immunity of the litigation privilege. So the defense -- excuse me -- the plaintiff in the Epstein versus Rothstein case begins their case by putting on proof about how Mr. Epstein was alleged to have been damaged by these absolutely immune activities. What do I do at that point? I must stand up every time any of that evidence is being adduced before the jury, and I must object on the basis that this cannot apply to Mr. Edwards. I'm in the position of defending Mr. Rothstein, of objecting on the PALM BEACH REPORTING SERVICE, INC. EFTA00801306 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 causation grounds, of objecting that no injury could have been caused, of objecting on the basis that this is all absolutely privileged information. And from the perspective of the jury, I am now defending this man who is sitting in federal prison for 50 years. And that simply creates extraordinary prejudice to my client. It creates confusion on the part of the jury, and it is absolutely unnecessary; and, indeed, under these circumstances procedurally precluded because there is no default against Mr. Rothstein. So this Court has discretion to solve the problem. You simply sever the permissive counterclaim or the separate action, and you allow us to proceed to trial on a case that Mr. Epstein's lawyers have said they are ready to try. Let's do it. Let's go to trial. They said they are ready. The Court has the ability to cure whatever obstacle conceivably exists to trying this case. My client finally deserves the PALM BEACH REPORTING SERVICE, INC. EFTA00801307 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 opportunity after 3,000 whatever it is days to be exonerated publicly of the terrible charges that were lodged against him and hang out in the air and hang out in the cloud and hang out in the Internet some nine million point six hundred thousand times. We would like our day in court, sir. I am pleased to answer any other questions Your Honor may have. But clearly the Court has got discretion to do what we would like you to do. Justice demands that you do what we would like you to do. Thank you, sir. THE COURT: Thank you, Mr. Scarola. Mr. Link. MR. LINK: Yes, sir. THE COURT: As I mentioned, and I want to give you the opportunity to comment on this point. In trying to think this through and rationally engage in a discussion, quote, technically and practically, I start with a proposition that the last amendment to the complaint that was filed on behalf of Epstein was solely against Rothstein on a PALM BEACH REPORTING SERVICE, INC. EFTA00801308 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 singular count. MR. LINK: Yes, sir. THE COURT: Clearly that was done after what was termed in quotation marks that I am using, a counterclaim filed by Edwards at a time when Edwards was, in fact, a named defendant in that particular action by virtue of Epstein's decision through counsel, presumably, to no longer include Edwards as a defendant in that action, the terminology and the trappings that would otherwise go along with a pleading entitled counterclaim would dissipate, would legally disappear, in other words, had Mr. Edwards and counsel decided to file a separate action. MR. LINK: Yes, sir. THE COURT: Had this case gone away in its entirety -- let's say, just for the heck of it, that Epstein decided to completely walk away from the lawsuit in its entirety, just walk away -- MR. LINK: Could have happen. THE COURT: -- as many do, okay, there was no longer a counterclaim, it is now -- PALM BEACH REPORTING SERVICE, INC. EFTA00801309 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and has really always been, since the time that Epstein -- strike that. That Edwards was no longer a defendant in the case, a separate action, no longer a counterclaim, technically or practically, because there was no pending claim against Edwards, at least as late as the second amended or whatever iteration of the complaint that was filed in September of 2011. MR. LINK: Yes, sir. I understand that. It's really easy. On Friday Mr. Scarola figured this out. We have had this case for nine years. His client was dismissed in 2012. Why didn't he come here in 2012 and say, Judge, this is no longer a counterclaim, I want my own suit? If he had preceded -- THE COURT: I don't think he needed to do that. Why did he have to make a declaration of such, when by operation of law -- again using September 11th, the last iteration of the complaint filed by Epstein against Rothstein only -- MR. LINK: Yeah. PALM BEACH REPORTING SERVICE, INC. EFTA00801310 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: -- there is no longer the trappings, the necessity of a counterclaim. There is no pending claim against Edwards by Epstein. It essentially -- it essentially morphs, then or becomes -- better stated -- a separate action, because counterclaim no longer applies. It has no application whatsoever. It's a separate action. The only thing that it shares now -- I will give you a chance in a moment. I apologize. MR. L/NK: No, you're doing great. THE COURT: The only thing -- the only thing that it now shares is a common case number. That's it. Okay. MR. LINK: That's no longer important. THE COURT: There's no longer any relationship -- MR. LINK: Not true. THE COURT: -- Epstein versus Rothstein is separate and apart, and has absolutely no connection at this stage of the game -- now there may be some tangential things that are shared in terms of the nature of the case, and some may even suggest that if they were PALM BEACH REPORTING SERVICE, INC. EFTA00801311 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 both separately brought that it could constitute a transfer. MR. LINK: Yes, sir. THE COURT: Because it involves, at least arguably, the same transaction and occurrences that may have transpired here. It may even suggest the potentiality of consolidation. Though, on further review if it would come before me and there would be argument against it, the likelihood -- and I'm just speaking generically. I'm not suggesting how I am going to rule on anything that's not before the Court -- but arguably, it could be denied because of -- I wrote down here before Mr. Scarola mentioned it -- confusion of issues before the jury and the potential, the real potential of prejudice when you inject a convicted felon with the notoriety of Mr. Rothstein, who is sitting in prison for the rest of his life, that's made international news, that continues to be shown on CNBC I forget the name of the show that has to do with greed -- and what's happened now with Mr. Edwards, in terms of the separate action PALM BEACH REPORTING SERVICE, INC. EFTA00801312 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that he has brought, albeit, again, having the genesis of the original claim, that has been dropped. But there's nothing that would have prohibited him from bringing a separate action, nothing that would prohibited severance a long time ago that I can think of, because of the fact that they no longer have any interrelationship legally. Now, again, I will grant you that factually there may be some overlap. I'm not suggesting that. But from a purely legal standpoint, this separate action, there is nothing that I can think of that would necessitate these two matters to be tried together. And the fact that substantial confusion could be operable here -- as argued by counsel and as written down by the Court, even before the mention of the word -- and the prejudice that would be done here, may even create a better forum for each of the parties to get their justice that they are seeking, i.e., Mr. Epstein's damages against Rothstein. I am not sure whether causation PALM BEACH REPORTING SERVICE, INC. EFTA00801313 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 becomes an issue or not. I think it's simply a matter of damages, but that Rothstein has the opportunity to defend himself against. But Edwards, on a totally separate legal theory, and in a case that now bears no semblance to a counterclaim, has his right to seek justice in a timely fashion as well. Why not? MR. LINK: My turn? THE COURT: Yes. MR. LINK: Okay. So many things to say. First, Judge, you nailed it. In 2012 Mr. Scarola could have come to this Court and said all the things you just said. THE COURT: What is preventing him from having it now? What's prevening it from happening now? Why can't I follow what I perceive to be, as often is the case, as I mentioned this probably before, the practical nature of a judge like Judge May from the Fourth District of Court of Appeal, taking the bull by horns, as she often does, has the gift of being able to clarify and PALM BEACH REPORTING SERVICE, INC. EFTA00801314 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 distill often very complex matters, to provide not only legally correct results, but practically correct results, which is why I admire her writing and the way she goes about things. MR. LINK: As do we, Judge. THE COURT: Why is it that somehow this technicality, which really is -- which has, in my view, no bearing on the legal -- on the legalities of the situation, whether were technically oriented or were practically oriented. But there's no denial of the fact that this is separate, that this really is no longer a counterclaim and hasn't been for the last seven to eight years. MR. LINK: Judge, we disagree with that. I don't think it's that simple, I really don't. I think we're confusing two issues, and let me start there. There is the issue of severance. It is clearly within this Court's discretion to sever this case. We are not disputing that. We are not saying you should. We thought we were talking about whether the case was at PALM BEACH REPORTING SERVICE, INC. EFTA00801315 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 issue. But we can talk about severance and whether it makes sense or not. And this Court needs to understand, no matter what Mr. Scarola wants, Mr. Rothstein is going to be part of this trial, whether we are suing him or we are defending their counterclaim, because this case is all about whether we can demonstrate that there is a connection between Mr. Edwards and Mr. Rothstein. That's what he says caused him harm. We're going to be looking at evidence at some point in which we believe with 100 percent certainty we can make that connection. THE COURT: The connection between what? MR. LINK: Between Mr. Edwards and Mr. Rothstein discussing the Epstein cases and getting around court scrutiny. THE COURT: And that's fine. Why didn't you plead it and maintain the claim when you had the opportunity to do that? Instead there was a dismissal of the claim against Edwards and an abandonment of those PALM BEACH REPORTING SERVICE, INC. EFTA00801316 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 claims back years and years ago. And a choice was made to proceed only on a one-count complaint against Rothstein as of September 2011, thereby, as I indicated earlier, losing any trappings, losing any indicia of counterclaim, at least by that point and likely before that, because there were several iterations of the complaint that were amended, subsequent to the dropping of Edwards from the claim, thereby no longer making it a counterclaim. It was in name only. It had no legal significance whatsoever, except by name. MR. LINK: It does, Your Honor. The legal significance, if I can approach, is laid out in our pretrial stipulation. And the case law is really clear. When lawyers enter into a pretrial stipulation, Your Honor should follow it. THE COURT: And I am wholeheartedly in agreement. Let me stop you there, because, again, you have argued it, and I don't want to make a short trip to that. Then Chief Judge Ciklin in a case PALM BEACH REPORTING SERVICE, INC. EFTA00801317 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that slips my memory as far as its name is concern -- spoke eloquently and at length about the sanctity of the pretrial stipulation. So before I even read it, and what it says here, you quoted from it, that's what I read it. I didn't go back and look at the pretrial stipulation itself, among the -- just so everybody knows -- among the 1,239 docket entries here. So I don't want anybody to suggest that it was simply by virtue of laxity that I did not review the actual brief. MR. LINK: Judge, there's none of us in this courtroom that have any doubt about how much time you have put into this case. And unfortunately there are probably papers filed that you haven't even received yet; filed before we got the notice. THE COURT: You got my rather brief response. MR. LINK: The brevity was hard to miss. We got it. And we filed these before. But the reason this joint pretrial stip PALM BEACH REPORTING SERVICE, INC. EFTA00801318 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is important, Judge, is you keep saying they are not the counterclaim Plaintiff, and Mr. Scarola and I negotiated this together. We wrote it together, we made changes together. And every part of this pretrial stip and the jury instructions and everything we submitted to the Court sets this case up to be tried, Epstein against Rothstein, first issue to be cited, says right in there. The second issue to be cited, Edwards versus Epstein. We've laid out how we're going to try this case. We've attached exhibit lists, witness lists. We do stipulated facts, Your Honor. So there is no part of the pretrial that we entered into, long before Mr. Scarola's motion at 5:00 on Friday asking to sever this case, that was ever contemplated by the parties. We entered into an agreement, two lawyers. That's what a stipulation is. We entered into an agreement, Judge, on how we would try this case. Now Mr. Scarola wants to change his mind. This is our contract. PALM BEACH REPORTING SERVICE, INC. EFTA00801319 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: But it's interesting, because in this pretrial, here is what it says. Quote, case against Rothstein. What, if any, damages were sustained by Epstein and proximally caused by Rothstein? MR. LINK: Yes, sir. THE COURT: Parenthetically, continue the quoted provision. Edwards does not agree with this language for the reason that the issue as stated fails to tie causation to Rothstein's operation of the Ponzi scheme. It is Edwards' position that failure to limit the issue in this way as to Rothstein has a potential of confusing the jury in determining whether Epstein had any probable cause to claim damages Edwards arising out of the same circumstances, end of quote. MR. LINK: Which means if you limit it, that prejudice is gone. That's what he's telling you. He agrees to this issue. He doesn't like the way I framed it. That's the difference. If I put his language in, which tied it to the