UNCERTIFIED TILU/SXMIPT DISCLAIMER IN THE MATTER OF

1 UNCERTIFIED TILU/SXMIPT DISCLAIMER IN THE MATTER OF EPSTEIN V. I EMOADS 1 - 4 THE COURT: Continuo on with the discussion. Mr. Link, you were in mid thought. HR. SCAROLA: I think Mr. Goldberger is hero to do the stay. 3 THE COURT: Lot's go ahead and take care of that. e Hr. Goldberger. . HR. ODLDBERGER: Thank you for taking 10 me out of order. Ono of those days I have 11 so much going on. 12 THE COURT: I completely understand. 1 13 thank you also for adjusting your schedule 14 as well. Is All right, lot mo get my materials 16 ready for that aspect of the case. I think 27 I am ready to ga. Please proceed. IS HR. GOLDBERGER: Thank you, Honor. So 29 we have a motion to stay your proceedings 20 pending at this time. I think it's 21 important for us to kind of discuss first 22 with the Court what it is that we are IS seeking to have resolved before this case -- 24 we would like to see It proceed. The following transcript's) of proceedings, or any portion 25 And I bring that up because 2 4 1 thereof, in the above -entitled matter, taken on Decerber 1 Mr. Scarola, in a prior hearing, had 2 Sth, 2017. is being delivered UNEDITED and UNCERTIFIED by 2 mentioned that this is not just about the 3 the official court reporter et the request of Kara i resolution of the CVRA. Mr. Epstein perhaps 4Rockenbach, Esquire. 4 has other matters that ho could potentially 5 The purchaser *greets not to disclose this uncertified and 5 have criminal liability concerning in other 6 unedited transcript In any form 'written or electronic) . jurisdictions that would not be covered by 7To anyone who has no connection to this case. the NPA, which is part of the CVRA. e Ibis is en unofficial transcript, which should NOT be e THE COURT: Lot's put on the record 9 relied mica for purposes of verbatim citation of r exactly what you're spooking about so that 10 tenths:wry. :0 if anyone needs to review this they II This transcript has not berm checked, proofread is understand those acronyms completely.so the 12 or corrected. It is a draft transcript, NW a certified 12 first natter we have, Your Honor, is what 19 transcript. As ouch, it may contain computer -generated 13 has boon referred to as the CVRA case. That 14 nastranalatiome of stenotype code or electronic 14 is the Crime Victims' Reporting (sic) Act. Is transmission errors, resulting in inaccurate or 95 And that matter is being litigated in 14 nonsensical word combinations, or untranalated stenotype 16 federal court in the southern District of 17 symbols which cannot be deciphered by non-stanotypisms. 17 Florida court before Judge Marra. 16 Corrections will be made in cho preparation of the 10 HR. SCAROLA: Excuse me. Since we are 19 certified transcript, resulting In differences in content, 19 doing this for purposes of the record, I 20 page and line numbers, punctuation and formatting. 20 think that you nay have mistaken. CVRA is 21 This mealtime uncertified and unedited transcript contains 21 not crime victims' reporting act. It is the 22 no appearance page, certificate page, index or 22 Crime Victims' Rights. 22 certification. 23 MR. GOLDBERGER: Thank you very much. 24 24 I appreciate that, Mr. Scarola. 25 25 so that matter concerning the CVRA case Palm Beach Reporting Service, Inc. EFTA00801576 2 5 0 9 10 11 12 13 14 15 le 17 16 10 is pending before Judge Marra in the Southern District of Florida. In that matter, Mr. Edwards, as the attorney for who happen to be Involved in this case, are seeking the unprecedented remedy of setting aside Hr. ER:COWS non-prosecution agreement. For the record, we need to establish that there's a non-prosecution agreement in place that prevents the US Attorney's Office for the Southern District of Florida in going forward on any criminal prosecution Mr. Epstein related to certain enumerated offenses if Mr. Epstein complies with his non-prosecution agreement. Mr. Epstein has compiled with all parts of that non-prosecution agreement. He has served a sentence that was part of that 5 2 3 4 7 9 10 11 12 13 14 15 io 17 16 19 7 jurisdictions: New York, US Virgin Islands, many other places. That is not what this stay motion is about. THE COURT: But isn't that critical to the analysis as to at least ono prong of the required elements that the Court is expected to look into, and that is, the length of time that the delay is being sought. Because even though the argument that you're making fits within a certain parameter, and somewhat similar to the discussions we had last week about each side wanting to franc their respective cases in the matter that they see fit -- and I respect that because they aro advocates -- but from the Court's perspective, from the general public's perspective, from the perspective of Hr. Edwards, when it comes to Mr. Epstein's invocation of the Fifth 20 non-prosecution agreement, and he's going 20 Amendment, whether or not the parameters 21 about his life. 21 that you're seeking in your motion Only 22 In an unprecedented action, 22 applies to the NPA at issue here, that sane 29 Mr. Edwards, on behalf of those individuals, 13 potentiality of criminal prosecution in any 24 is seeking to sot aside that non-prosecution 24 of these jurisdictions where -- not being a 25 agreement and subject Mr. Epstein to 15 criminal defense lawyer, I am not going to 6 8 1 criminal prosecution for a matter that he 1 sit here and try to estimate what the 2 has already pled guilty to. 2 statute of limitations are for these types 3 It tugs at the very, very cornerstones of due process, Your Honor. But as a 3 of alleged criminal activity -- And again, I am not accusing anybody of 5 criminal defense attorney with a lot of 5 anything. I want that to be clear. You 6 years doing this, I have to act cautiously because one thing that Judge Marra said. Judge Marra in ono of the orders in 6 brought up these other jurisdictions and the potentialities. I don't know what those statute of limitations are. I only know 9 this case, indicated that setting aside of 9 that in my limited experience when it cones 10 the non-prosecution agreement Is something 10 to these types of potential claims or that he would consider. 11 potential charges, that the statutes aro 12 So I would be remiss, I would 12 typically extraordinarily longer, 13 committing malpractice if I allowed my 19 particularly when minors are involved for 14 client to testify fn matters in your lawsuit la very obvious reasons. 15 before Your Honor In matters that would be 15 So while the parameters that you aro 16 part of the non-prosecution agreement. So 14 suggesting may be your intent, that when a 17 that's kind of procedurally where we aro 17 broader perspective is looked upon, it's 10 right now. 10 very possible that the same outcome that, 19 What I wanted to clarify for the Court, 19 i.e., the invocation of the Fifth Amendment, 20 is that we aro not seeking to stay this case 20 which I respect, I understand, and fully 21 for any reason other than matters that aro 21 intend to comply with his ability to invoke 22 contained within the non-prosecution 22 the Fifth when appropriate. 23 agreement. 23 No don't know when that ends. 21 Now, Mr. Scarola has made reference to 24 MR. GOLDBERGER: I have a simple answer 25 potential prosecutions in other 2S for that, Your Honor. And I have sat here Palm Beach Reporting Service, Inc. EFTA00801577 9 11 2 3 4 5 7 8 9 10 11 12 13 14 25 26 27 IS 29 10 91 22 29 14 25 and very carefully listened to Your Honor's pronouncements and the way you've the handled this hearing and the hearing that we have had. And you have indicated that what's in play in this case aro Those are the individuals that you have indicated you aro going to allow testimony concerning. Those aro the vary sane Individuals that aro in the NPA. That's all wo care about. THE COURT: Excuse me for interrupting, but I do want to make sure that this is -- those three individuals aro now over the age of 18. Have they agreed to have thole names utilized at this point? Mr. Scarola, do you wish to comment on that? Do you know? MR. SCAROLA: I cannot speak authoritatively about that, Your Honor. THE COURT: Ny preference, Mr. Goldberger, is to continue to go ahead and use the initials until I'm comfortable. Because the criminal charges that were brought, as you have recited them -- again, 2 10 11 12 13 14 35 36 37 39 10 11 22 29 24 25 recently taken of III., it was with the expressed stipulation that she would be referred to in the record by those Initials. THE COURT: The only positive that's cane out of this is getting those names and listening to those names, I don't know any of those young ladies. I don't know any of their families. The names don't sound a bit familiar to me. So at least I don't have to worry about that. Mr. Link, did you want to add anything? MR. LINK: If I might. The witness list of Mr. Edwards actually names these folks by name. MR. SCAROLA: That was inadvertent, Your Honor, and we plan to address it. THE COURT: Okay. Thank you. MR. LINK: The second thing, with Your Honor's permission, wo brought the plea. You wore asking about it last tine what the actually counts wore, and I have a copy of the non-prosecution agreement, which I can provide to the Court. He have the actual documents. THE COURT: Thank you. I appreciate 2 4 7 o 9 30 II 32 .3 .4 35 16 17 18 10 I appreciate the fact that you were horn last week to help with those aspects -- those criminal charges pertain to them when they wore minors. So I don't want to, by way of convenience or otherwise, suggest without a full agreement or something that's going to satisfy the Court, that they are willing to have their names utilized, oven at this juncture. Because my comfort level at this point is not high. MR. GOLDBERGER: 1100 percent understand. I have lived this case for 10 years. These names have been used throughout both the criminal litigation and the litigation of those cases. THE COURT: So in the case before Judge Marra, their names have bean used? MR. GOLDBERGER: They have not been. 19 MR. SCAROLA: Your Honor, if I may, as 20 I've thought about it. It is my ballot that 21 there's only ono Epstein victim who has 22 voluntarily agreed that her name may bo used 23 and that is 24 Tho others, I'm almost certain, have 25 not -- and in fact, when the deposition was :o 11 32 33 .4 Is 16 17 18 19 20 21 22 23 24 25 12 that. MR. LINK: We will file then, so they're part of the court record. THE COURT: For the today, I'm going to ask our court reporter -- absent any objection from respective counsel -- to simply amend the record so that only the initials aro used please, so that we don't have the names specifically stated. And hearing no objection. We may need to address this later on down the lino. But again, until my comfort level is satisfied, I want to do everything we can to continue to use their initials or the as the third individual. Again, Mr. Goldberger, I apologize for interrupting you. MR. GOLDBERGER: And I apologise if the names wore mentioned. THE COURT: That's okay. MR. GOLDBERGER: Anyhow, Judge -- but to answer the Court's well-founded question, is there any finality to the request for a stay, and the answer that Your Honor has ruled already that the testimony that will Palm Beach Reporting Service, Inc. EFTA00801578 I 13 be allowed in this trial is the testimony of 1 15 I am just giving an example -- if he had 2 these throe Individuals, the very, very sane 2 brought a defamation claim against 3 three individuals who aro part of the 3 Mr. Epstein for things may have resulted 4 attempt to set aside the non-prosecution 4 from extra judicial statements that may have 5 agreement. boon made by Mr. Epstein to the press, to 6 So I want to make it clear to the court whomever, to third parties, published, and 7 our request for a stay is a limited request had some damage to Mr. Edwards, I could 6 for a stay, until such tine as the CVRA case understand the interplay and the potential 9 is resolved. And it has nothing to do with strategic decisions that would have boon 10 over alleged woman who may be making claims 10 made by Mr. Edwards In on the ono hand 11 against Mr. Epstein. And that oven more 11 haulm; the Crime Victims' Rights Act claim 12 important, based on Your Honor's ruling that 12 being brought -- which, arguably, out of 13 you've made that those aro the facts that 13 necessity Mr. Epstein has to preserve his 14 you aro going to allow the parties to go 14 Fifth Amendment right to self-incrimination, 25 into this case and not tangential issues 25 and the fact that Mr. Edwards acted in 26 involving other individuals. 26 taking the offensive in bringing the tort 2? So that Ls our -- that is the area -- 27 claim of some nature, generically -- again, 28 and that is the case that we aro seeking the 20 just as an exemplar -- against Hr. Epstein, 29 stay concerning. 29 the strategies would then coalesce, co-exist 20 So where aro we procedurally? Well, 20 and would create concern of a significant 21 this attempt to sot aside the 21 nature for the Court. 22 non-prosecution agreement was brought by 22 But this is quite different. How do wo 29 Bradley Edwards. We can't lose sight of 29 address that? 24 that. It was brought by Bradley Edwards, 24 MR. GOLDBERGER: Okay. Respectfully, 25 who Ls the counter -plaintiff Ln this case. 25 Judge, strategy has nothing to do with this. 14 16 1 So Mr. Epstein is put between the proverbial h It's the playing field that we aro on right 2 9 rock and a hard place in this situation, Your Honor. 2 , Now, Mr. Epstein filed his lawsuit 4 THE COURT: You know the thrust of 4 against Mr. Edwards, and ho very wall could $ Mr. Scarola's argument. 5 have gone forward in that lawsuit without 6 MR. GOLDBERGER: I know what's coming. . having to testify, without having to worry 7 I know what's coming. That we started this. about Firth Amendment privileges, whether 8 9 THE COURT: And that's critical, because but for Mr. Epstein's action In e he's implicating himself in any kind of criminal liability. He could have gone 20 bringing this lawsuit in 2009 and amending :0 forward on that case against Mr. Edwards II his complaint in 2011, and then failing to II without having to get on the stand and 22 address in any fashion the motion for 22 testify. 29 summary judgment that was ultimately brought 29 Now, in defense of that case, if that 24 by Mr. Edwards against Hr. Epstein and a 24 case had gone forward and the defense had 25 Judgment resulting therefrom -- that Ls 35 called Hr. Epstein, then he would have had a 16 judgment of dismissal of the claim by 16 decision to make as to whether he was going 17 Mr. Epstein -- this never would have boon an 17 tO answer the qu 10 issue. what we are dealing with now would 16 THE COURT: Well, I couldn't imagine in 19 never have boon an issue. 19 reviewing Mr. Epstein's complaint now for 20 I can certainly understand, and I 20 the -- beyond 10 times -- that ho could have 21 believe there would be firmer footing to 21 avoided taking the witness stand to justify 22 rely on if Mr. Edwards had brought some type 22 most, if not all of his claims, in that 23 of Clair. against Hr. Epstein. Let's say 23 initial suit. But go ahead. 24 sane typo of defamation claim -- I am not 24 MR. GOLDBERGER: If wo put that aside, 25 suggesting there aro any grounds for that. 25 and we turn to the playing field that we aro Palm Beach Reporting Service, Inc. EFTA00801579 17 19 1 on right now, we have one lawsuit that's 2 pending right now. You can call it anything 3 you want. You can call it count -plaintiff, 4 counter -defendant -- I practice on the other 5 side of the elevator -- but we are defending 6 a lawsuit right now. We are the defendants 7 in this case. 0 we cannot defend that case. It is not 9 a fair playing field. Ne can't defend this 10 case because of what the plaintiff has done. 11 He has brought an action to set aside 12 Mr. Epstein's non-prosecution agreement. 13 And Mr. Epstein has no choice, if I'm his 14 lawyer, but to invoke his Fifth Amendment 25 privileges. 26 what does that do? It's going to allow 27 Mr. Scarola to ask for all of these adverse 28 inferences and try to truck roll those 29 adverse inferences to this Jury. And that's 10 the playing field we have right now. 22 And we didn't bring this upon 22 ourselves. They aro doing it, because they 22 have brought this action to set aside the 14 NPA. 25 I am not asking this Court to stay this 2 3 10 11 12 13 14 25 26 27 30 29 20 sl 22 22 24 25 Judge Marra getting out an order until the spring or summer of 2018. MR. COLDBERGER: I don't have a recollection of that, Your Honor. But if that's been out there, I accept that -- THE COURT: It didn't give me much confidence that it was going to be accomplished in a relatively brief period of time. And certainly -- at least, again anecdotally, without having it here in front me -- not going to be accomplished before March 13 of 2028, which is the trial day here. MR. COLDBERCER: My review of PACER I think is they are at the point where there's a motion for partial summary judgment that's outstanding. So that to mm -- again, not being necessarily a civil practitioner -- when I hear the word summary judgment, to me someone is asking to end this thing. I think that's the juncture that it's at right now. So my point is, Your Honor, that we are not seeking an indeterminate stay. And the Court has road the papers and you aro 2 4 6 7 9 30 II 32 33 .4 25 16 17 10 18 case for indeterminate period of time. There's three things that can happen, Your Honor. Mr. Edwards can volunteer to not seek the remedy of setting aside the non-prosecution agreement. He's seeking other remedies in his CYRA case. He could do that. Judge Marra could enter his order on the account to set aside the NPA, or this Court can temporarily stay the matter until such time ono of those things happen. There's been no testimony on the record from anybody as to how long that stay is going to require. I think at ono hoaring you asked Mr. Edwards -- not on the stand or anything like that -- how long is that CYRA case going to go on for. Mr. Edwards said, Well, it could go on for a long time. Well, 19 that's the only record you have right now 20 that this thing is not coming to fruition. 21 THE COURT: Well, that and anecdotally. 22 In seeing the newspaper account, I believe 23 it was suggested that the federal court is 24 not looking to try the case -- or there's 25 going to be a significant hiatus in terms of 2 5 :0 31 32 23 24 25 16 17 10 19 20 21 22 23 24 25 20 of the various factors that the Court is considering in determining whether to grant the stay, you have discussed one, I ask rhetorically what is the prejudice at this point for a limited stay so that matter resolves. Mr. Edwards, if he has been damaged, has been damaged already. They want to try this case in March. Everything that has happened, has happened. Nothing to going to change. THE COURT: What they will argue though is that there is financial recompense that Mr. Edwards is claiming that has built up over the years -- and Mr. Scarola was alluding to -- there's a substantial amount of loss that he has encountered as a result of the ongoing litigation over the last seven, going on eight years. MR. COLDBERCER: Your Honor, When you weigh that -- Mr. Edwards, admittedly has testified in deposition that he's successful. He's doing very well for himself -- and I congratulate him for that -- but when you weigh that to the Palm Beach Reporting Service, Inc. EFTA00801580 1 2 3 21 prejudice to Mr. Epstein that he has those handcuffs -- he's got them back on -- ho can't defend this case at this point. 23 Rothstein, Rosenfeldt 6 Adler when presumably Mr. Edwards would have bean most susceptible to a malicious prosecution • I think -- Your Honor, wo talked about I assault. He didn't need to filo it then. 5 the 403 analysis on other matters, prejudice He had at least four years in which to 6 versus probative value, I think we can kind a file it if. He's claiming he's a victim of 7 of do a balancing analysis in this a RICO action, he would have had at least 8 situation. five years in which to file it. If he 9 Maybe Mr. Edwards wants to have his day 9 claims that somehow he was unaware of the 10 court sooner than later. And there may be 10 reasonable basis for the filing of a claim 11 some prejudice there. But when you look at 11 against Mr. Edwards because relevant facts 12 the extreme prejudice that Mr. Epstein is 12 wore concealed from him, than the statutes 13 suffering, wall, he just can't defend this 11 of limitation wouldn't have even begun to 14 case. 14 15 Courts are designed to be level playing 15 So there's no question about the fact 16 fields, and that's got nothing to do with 16 that Mr. Epstein brought this upon himself. 27 what the Court's doing. But just by virtue 17 He initiated these proceedings nine years 38 of the way the facts have come out in this 18 ago knowing, as Mr. Goldberger says, he 39 case and procedurally what has happened, it IS could not defend them. 20 is not a level playing field for Mr. Epstein 20 And in deed he couldn't defend them, II because he has no choice but to invoke his 21 because in the face of a motion for summary 22 Fifth Amendment privileges, and Mr. Scarola 22 judgment, which called upon him to disclose 29 is waiting for everything to flow from that. 21 the basis for his claims against 14 THE COURT: All right. Mr. Goldberger, 24 Mr. Edwards, he filed nothing. 25 thank you. I will give you a couple minutes 25 And on the eve of the motion for 22 24 I to rebut if you choose to. 1 summary judgment, he voluntarily dismissed 2 Mr. Scarola. 2 his case. He didn't say, I need a stay in 9 MR. SCAROLA: The complaint out of i order to be able to produce evidence to • which this malicious prosecution claim 4 support my claims. He allowed the claims to 5 arises was flied on December 9 of 2009. So 5 be resolved against him now conclusively. 6 7 wo aro about to observe the ninth anniversary of the pendency of this e So those arguments, quite frankly, don't make sense. And I have gone through 8 litigation. e in the written response that we filed and 9 THE COURT: Excuse no for my pointed out all of the stages In the 30 mathematical -- :0 litigation where Mr. Epstein reasonably 31 MR. SCAROLA: No, no. That's quite all 31 could have coma before the court said, I 32 right, sir. I didn't make that comment as 32 need a stay. 33 any criticism of Court's math, but just to 19 What the defense acknowledges in their 34 observe that there have boon nine years 34 motion to stay is -- and this is a quote. 35 during which a motion to stay could have 35 'Florida courts have long recognized that 16 boon brought to the attention of the Court. 16 although under certain circumstances a trial 17 And we know that the same basis upon 17 court may grant a stay in a civil proceeding 18 which the argument rests today existed on 18 for a limited time during the pendency of a 19 Macomber 9, 2009, because the complaint 19 concurrent criminal proceeding, such a stay 20 Itsolf refers in paragraph 4211.1 to the 20 is not constitutionally required. 21 pendency of the non-prosecution agreement. 21 •The earlier the motion is made, the 22 So it was there. And Mr. Epstein know LC 22 more favorably it's looked upon. The 23 was there when he filed this case. 23 shorter the stay can reasonably anticipated 24 And as Your Honor observed, ho flied 24 to last, the more favorably it's looked 25 this case within days of the implosion of 25 upon.• Palm Beach Reporting Service, Inc. EFTA00801581 1 2 3 4 5 6 7 8 9 10 II 12 12 14 15 16 17 16 29 20 II 22 29 24 25 25 The burden of proving how long this stay reasonably can be anticipated to last is not on us. It's on the party making the motion. THE COURT: This is not a typical concurrent legal -- strike that. Concurrent criminal prosecution that we see in automobile accident cases, for example, where there may be corresponding vehicular manslaughter case -- MR. SCAROLA: Or a drunk driving charge -- THE COURT: Or DUI-type issue. MR. SCAROLA: C . Clearly that's the circumstance, Your Honor. But let me talk about part of what Mr. Goldberger has said with regard to what wo can reasonably anticipate with regard to length of this stay. There are two possibilities with regard to the non-prosecution agreement. It can be set aside or it cannot be set aside. If it is not set aside, then Mr. Goldberger tolls us that there would be no longer any basis for the assertion of the 1 2 3 9 10 11 12 13 14 25 26 37 28 29 20 II 22 29 24 25 27 there is a federal statute which makes admissible in any other criminal proceeding evidence of other child victim crimes. So, Mr. Epstein can have the advantage of a final disposition with regard to crimes only in the Southern District of Florida -- as has boon repeatedly pointed out. That's all the non-prosocutlon agreement covers -- but he still has a Fifth Amendment right to refuse to answer any questions about the crimes that he committed in the southern District of Florida, because they aro admissible in every other jurisdiction where he's been doing exactly the same thing to children for years. And no ono could reasonably challenge that assertion of the Fifth Amendment privilege. So that's one alternative. The other alternative is Crime victims' Rights Act case results in setting aside the non-prosocutlon agreement. And no matter what Mr. Goldberger may say about what he believes the merits of that claim to be ad the likelihood of that outcome to be, Judge Marra has clearly Indicated that Jeffrey 26 28 1 Fifth Amendment privilege. Epstein faces the possibility of having that 2 4 Moll, respectfully, I suggest that there is nothing in the record that supports the assertion that Mr. Epstein will waive 2 non-prosecution agreement set aside, in which case, he tacos criminal exposure, criminal liability for the 40 cases that wo his Fifth Amendment privilege upon the 5 know of, and any other cases that aro 6 favorable conclusion of the Crime Victims* Rights Act case. developed subsequent to that time. And those prosecutions can go on for years and 8 THE COURT: As a second point, I their appeals can go on for years. 9 presume that, like any other civil case -- So there simply is no balls, none, upon 30 this isn't construed as a civil case, 10 be which a prediction can made as to a 31 correct, this Crime Victims' Rights Act reasonable limitation associated with a stay 22 22 in this case. And these aro all things that 13 MR. SCAROLA: Yes, sir, It is. Subject 29 Mr. Epstein had an opportunity to avoid, or 24 to appeal. 24 at least an opportunity to limit, by 25 THE COURT: That's exactly what I was 35 delaying the filing of his maliciously filed 16 going to say. Either side can appeal. So 16 claim. 17 in other words, the state could appeal -- or 17 He started this battle knowing the 10 whomever the actual federal government could 10 criminal exposure that ho faced clearly at 19 appeal -- or Mr. Edward's client could 19 the time -- not only in the Southern 20 appeal. 20 District of Florida -- but knowing the 21 MR. SCAROLA: Yes, sir. True. 21 criminal exposure he faces elsewhere as 22 In addition to that, oven assuming a 22 well. 23 final and conclusive resolution of the Crime 23 THE COURT: I made a notation in the 24 Victims' Rights Act case which upholds the 24 binder. And I think this is what you're 25 validity of the non-prosecution agreement, 25 suggesting, Mr. Se aaaaa . Correct ma If I am Palm Beach Reporting Service, Inc. EFTA00801582 29 31 wrong. 2 what I wrote last night when I was 3 reviewing those materials, was that 4 Mr. Epstein by and through his attorney 5 should have recognized the potential 6 exposure, i.e., to a malicious prosecution, 7 when he brought suit against Hr. Edwards and 8 III., for that matter as wall. 9 I don't want to include Rothstein In 10 the mix because that's a separate can of 11 worms, which we don't have to get into 12 substantively at this point in time. 13 I don't think there's any way to not 14 consider that. In other words, when the 25 various claims were brought against 26 Rothstein, Edwards and III., there should 17 have boon -- and the Court would make this 38 finding in its ruling -- subject to 19 Mr. Goldbargor's rebuttal -- that 20 Mr. Epstein by and through his Counsel 11 should have realized the potential 22 ramifications of bringing this lawsuit. And 29 those potential ramifications being that if 14 he did not have the ability to sustain the SS claims that he made -- whether by way of 9 10 11 12 13 14 35 36 37 38 29 20 21 22 29 24 25 that Brad Edwards has a right, an absolute right to put an and to. And the only way he conclusively dons that is with a judgment in his favor in this case. So there is a vary, vary significant prejudice that has already bean suffered by delay. Thera aro other aspects -- less significant. But if this case wasn't filed until four years later, all of those appellate proceedings, that were very costly to the plaintiff, would have been avoided because the law would haven settled by that time. So there aro many reasons to deny this motion. There are no reasons to grant Lt. Thank you, sir. THE COURT: Thank you, Mr. Scarola. Mr. Goldberger. HR. GOLDBERGER: I don't want to respond to oath of Mr. Scarola's arguments. I want to just reiterate the playing field that we have hero. The way things stand right now, Your Honor, Kr. Epstein cannot defend this case. He can attempt to defend the case, but 1 2 3 7 8 9 20 12 13 14 15 16 17 10 19 20 21 22 23 24 25 30 summary judgment, jury trial, appeal, whatever the case might have been -- then that recognition should have carried over to anticipate the vary exposure which he now is facing, that being the malicious prosecution claim brought by Mr. Edwards. HR. SCAROLA: Your Honor, I have just ono last matter that I want to address, and that is the subject of prejudice. As, Your Honor, I know appreciates, delay is never the friend of the party with the burden of proof. No have already experienced a nine-year delay. And that does have an impact on our ability to sustain our burden of proof, because memories fade and it impacts upon up to a disproportionate degree than It does to the defense when we carry the burden of proof. But there's something more significant. And that is, for nine years these allegations have repeatedly been receiving public attention without any final disposition exonerating Brad Edwards. Thera is a poison that has boon circulating within the stream of knowledge 2 5 :0 1 32 33 14 35 16 17 18 19 20 21 22 23 24 25 32 he's going to have these adverse inferences that are going to be pointing at him like arrows. It's not a fair fight. And the only way to avoid the situation where it's not a fair fight is for a limited stay. And when Kr. Scarola says we could have filed our motion for a stay early on, we specifically did not file our motion for stay early on because that case -- that being the CVRA case was in it's infancy. As I've explained to the court, we're at -- partial summary judgment status now, so it's reasonable to assume -- despite what the newspaper say, and despite how fast this case has moved, we aro much farther long in the case, and a reasonable stay can make it a fair playing field, is all that Me. Epstein is asking. In my enthusiasm, I may have said Mr. Epstein plod guilty to offenses involving the throe women. If I did say that, that was not a correct statement. Ho did not plead guilty to any of those women -- anything involving those throe women. Palm Beach Reporting Service, Inc. EFTA00801583 2 3 4 5 6 33 THE COURT: Thank you both aides for your written and oral presentations. Obviously I have given this a great deal of thought. I have reviewed the materials that have been provided to m0, including a sampling of the case law that was provided 2 3 435 all represented by Kr. Edwards. No had the added complication of the implosion of the Rothstein firm duo to the heinous activity that Kr. Rothstein ended up pleading to. we had, as I mentioned last week and as 7 to the Court. The motion la denied. There was a Mr. Scarola reiterated today, what must have boon an extremely harrowing experience for 9 phrase that was used in the motion filed by 9 anyone concerned, including Rothstein 10 Kr. Epstein that has sone analogous 10 himself -- though I hold no personal empathy 11 circumstances here. This talks in terms of 11 for him. I will, of course, as an aside 12 the invocation of the Fifth Amendment. I 12 adjudicate the case with full recognition of 13 will read it to you. But it gave me food 13 his rights and remedies, as I would any 14 for thought, as I was trying to decide 14 other litigant. But in terms of these 25 reviews of the papers the next step in terms 35 particular facts and the peculiarity of this 26 of how I was going to deal this and the 36 matter it's something that needs to Do subject of oral argument. 27 dressed and discussed. 16 It says, quote, A necessity of the 28 -- and the timeline that follows, which 29 validity of an assertion of Fifth Amendment 29 is compelling to the Court and its analysis, 20 privilege, the court must look to all of the 20 as it was earlier during recent hearings, SI circumstances of the case and be governed as II that Hr. Rothstein's arrest and the time 22 much by personal perceptions of the 22 period -- which may not completely dovetail 29 peculiarities of the case as by the facts 29 with the federal agents raiding the 24 actually in evidence, end quote. And that's 24 offices -- was a week before the subject 25 a quote from the case called SEC versus 25 complaint filed by Hr. Epstein was 34 36 1 H-I-L-I-T-A-N-0, which was an initiated. 2 order from the southern district of Now York citing -- and actually quoting from a case 2 And as I mentioned earlier, what I wrote in the margin of the binder was what I 4 called Hoffman versus United States at 341 perceived to be a reasonable consideration 5 US 479 and 486. United States Supreme Court 5 by counsel for Kr. Epstein and Kr. Epstein 6 decision from 1951. why did that quote himself as the plaintiff in that 2009 case 7 strike ma as I was going through the actual that he brought during the time period I 8 issues that aro before the Court on the stay just indicated around December of 2009 and 9 order? hero we are in 2017, which is actually the 20 And that is, I think evidence, by the :0 eight anniversary, so my math skills weren't 21 quote and that in that personal perceptions 22 off too badly, because the case was brought 21 of the peculiarities of the case govern the in December of 2009. we aro here now in 29 Court's determination of the validity of the 29 December of 2017. 24 assertion of the Fifth Amendment as by the 24 As I indicated, Hr. Epstein brought 25 facts actually in evidence. 25 this case through Counsel. And there is a 16 I think this motion parallels that type 16 well stated axiom, generally, not in legal 17 of analysis because of the absolute 17 field, but certainly has application here 10 peculiarity of this particular case and it's 10 that typically the best defense is with 19 procedural protocol and manifestations. 19 offense. 20 The timeline that's up on the Elmo at 20 And by taking the offensive and filing 21 this point is helpful to the Court in terms 21 the lawsuit -- which ho had every right to 22 of its analysis. And that is that we have a 22 do -- as I mentioned earlier, there should 23 situation where mach of what was transpiring 23 have been a recognition at that very moment 24 in the latter part of 2009 was the pendency 24 of the potential exposure to the 25 of these throe cases: III., III. and IIII 25 defendants -- but primarily Edwards -- when Palm Beach Reporting Service, Inc. EFTA00801584 37 39 2 he brought that suit. And that potential 2 at that point sitting the case for the 2 exposure should have boon also construed to 2 December 5 data -- which was supposed to be 3 be that if he did not have sufficient 3 today -- and not now when we aro several 4 ammunition -- for whatever reason -- and I'm 4 months removed from trial. 5 not suggesting -- them aro circumstances 5 The issue of accountability la an 6 whom people just don't want to fight 6 important ono and has always been an 7 anymore -- those aro rare, but they do important ono to this court. And having to 8 occur. But there should have boon that B live with the consequences of ones 9 recognition that that potential exposure 9 choices -- Whether they be independent or as 10 existed at the time the suit was filed, that 10 a result of an attorney bringing the 11 a malicious prosecution case could have bean 11 action -- which is that party's own chosen 12 in the offend and may well have boon in the 12 action, his own claim -- in this case it 13 offend, if necessary *tenants from a legal 13 would Mr. Epstein through counsel -- has to 14 perspective or the requisite facts were not 14 be emphasized. 25 able to bo proven or at least shown at the 25 And again, the Court's analysis, though 26 elm* of summary judgment, which ultimately 26 it will still be concerned about the 27 occurred, which was not defended. 27 timeliness -- timeliness does enter into the 28 So by taking the approach that 28 Court's view of this case -- the Court does 29 Kr. Epstein through counsel took, ho was 29 find it will be prejudicial to the interest 20 actually, for the Court's purposes, 20 of Mr. Edwards to further delay the matter. 22 constructively aware of what would have been 22 And that an individual on either side is 22 entailed for him to bes able to, ono, present 22 entitled to sone finality. 29 and introduce the necessary legal and 29 the Court further finds that simply by 24 factual arguments to support his easel and 24 virtu* of this NPA matter being resolved by 25 two, be able to recognize the potential 25 the trial judge or by a jury is applicable 38 40 1 exposure that a malicious prosecution claim 1 in that Crime Victims' Rights Act case would 2 could bring at the Inception of his filing 2 not be the end of it. In fact, it would be s of the '09 suit if ha couldn't deliver on i shocking to me that an appeal would not be 4 what I have globally suggested is an 6 taken -- no matter Whether it was decided by 5 accountability issue, and this is standing 5 a Judge or jury, or a combination thereof -- 6 behind what has boon filed. . that one aid* or the other would not appeal 7 I think apply Mr. Scare'a has pointed the issue. So that would prolong it *von e out that there wore -- what those in the e further. 9 criminal courts talk about -- critical So the Court has taken into account all 20 stages of the proceeding when things like 10 of the issues and all of the matters in 22 **Foray inference have to be re-evaluated 12 balancing and trying to maintain the playing 12 and masked by the trial judge. But these 12 field in as Laval a manner as the Court can. 29 critical proceedings wore set forth in the 29 However, there aro going to be, again, 24 civil context to suggest that they war* 24 consequences for the actions taken. And by 25 applicable and appropriate elms when at the IS taking the offensive, this takes us out of 16 very least a stay could have boon relocated 16 the example that the court presented )7 so that during those periods of times -- 17 earlier, and that is, if Mr. Edwards had 10 which I'm adopting but won't be reiterating 10 brought a claim against Kr. Epstein that had 19 for this record -- will be a part of the 19 a relationship to the claims brought by 20 order if you so desire -- a stay could have 20 Mr. Edwards on behalf of his clients against 21 boon requested and it could have boon 21 Mr. Epstein -- and I gave you examples of 22 potentially far more compelling at ono of 22 defamation -- something of that nature -- 23 those periods. And it would have been when 23 sem* typo of tort claim -- I could than see 24 the motion was filed, which was 24 issues that would interfere with the level 25 approximately two months prior to the court 25 playing field that Mr. Goldberger and the Palm Beach Reporting Service, Inc. EFTA00801585 41 43 1 Court has emphasized both today and on other 2 occasions. 3 But that's not the case hare. 4 Mr. Epstein chose the playing field to which 5 he has now found himself. I'm not here to 6 criticize, praise or otherwise comment on 7 that choice, other than to say that once that choice was made, and once there was no 9 application for stay at any of those 10 critical junctures outlined in the Edwards 11 memorandum, then the Court, as a result, 12 denies the stay for the reasons that it 12 stated in the record. 14 All right, again, thank you 35 Hr. Goldberger. You are free to go if you 36 wish. Wood luck on all the matters that 37 you're dealing with. 28 Hr. Scorpio, again, I would ask that 29 your office prepare an order with acme 20 , please -- citations as wall as 2I citing to critical junctures which you have 22 cited in your memorandum to support the 22 Court's decision. 24 MR. SCAROLA: And I gather it will be 25 in Sufficient to say that the motion is 9 10 11 12 13 14 35 26 37 38 29 20 21 22 22 24 25 HR. LINK: Before the break, what I as saying, Judge, what I believe is important and might help us all understand whore we are going and it this. I have looked at this case maybe two simply, Your Honor. THE COURT: Is this in conjunction now with Jeffrey Epstoin's phone records. HR. LINK: It's in conjunction with Mr. Scarola's confusion and Your Honor's statement that ho was going to by allowed to prove the truth or falsity of the allegations of the complaint. What I said to the Court was that we understand that you have said that. But we don't believe that's what the law is. And you asked me to explain why, so that's where I was headed. THE COURT: Sounds good. HR. LINK: Maybe I was looking at it in a too narrow of fashion, because of -- when I road that Florida Supremo Court case that we spent the morning on, I road it to say you look at when the complaint was filar' that day. And you look at all of this information -- but the when I moan you, I 2 7 6 9 10 13 12 19 34 35 16 17 18 19 42 denied for the reasons cited in the record. THE COURT: Yeah. One of our now federal court judges was criticized by the Fourth District Court of Appeal for doing just that, so we have to -- MR. SCAROLA: We will have detailed order, Your Honor. We will take the transcript. THE COURT: Thank you. So I guess St's back to the evidence. MR. LINK: My turn. THE COURT: Thanks for waiting again. I appreciate that. Again, I apologize for cutting you off mid thought. Off the record. IA discussion was held off the record.' THE COURT: Back on the record, pleaso. Hr. Link. HR. LINK: What we were talking about 20 before the break -- 21 THE COURT: And don't be reluctant to 22 reintroduce me to we where we were. 23 MR. LINK: I was going to start over, 24 Judge, and make you listen to me twice. 25 THE COURT: That's okay. 44 moan you, Your Honor, as a judicial 2 determination unless there is a question of fact -- and this is what you have to ask 4 yourself. You have to ask yourself two things. One, is this information sufficient to a roasonablo person -- it's an objective 0 standard -- to a reasonable person that they 9 would initiate the civil lawsuit. There's a 20 subject component to lt, though, which is 31 this: that the person who is actually making 12 the decision cannot know that what they are 12 looking at is false. 14 So there's an objective component, 35 which is, is this enough for a reasonable 16 person -- subject component is the person 17 making the decision to initiate the civil 18 proceeding do they have a good faith belief 19 that what they're reading or being told or 20 looking at connecting the dots is false. 21 That was important in answering 22 questions that Hr. Epstein was asked because 23 there's bit of a disagreement between 24 plaintiff's -- counter -plaintiff's counsel 25 and us, because we believe Mr. Epstein Palm Beach Reporting Service, Inc. EFTA00801586 45 answered most -- he didn't answer thou all, 47 I'm not going to suggest to you that there's 2 Your Honor. You aro going to find a couple always going to ba a bright line separating 3 that you aro going to say, I think that was defamation claims versus claims of malicious 4 related. But he answered a lot of them, and prosecution. They could often be somewhat 5 he gave nine to 13 pages of testimony and factually analogous. 6 two affidavits explaining essentially what However, this all goes to the global 7 it was he looked at that gave him comfort to bring the suit. decision the global finding by the Court, by the jury, whomever, of weighing that 9 What we have focused on since then -- 9 information that Mr. Epstein had at the time 10 since our involvement in the case starting 10 he filed suit, and arguably through the 11 on the 29th is this -- this is what 11 continuation of that claim. And just like 12 Mr. Edwards' counsel sent us last time -- 12 anything else, when we instruct the jury, 12 put on the board last time. And this is 13 the jury can make a decision on all or part 14 whore the disconnect is for me. And here it 14 of the evidence. 35 is. Lack of probable cause as to either or 15 They have the wherewithal through 26 both two [also claims -- not just civil 36 instruction to accept, reject or to do what 57 proceeding, two false claims. 37 they wish with respect to opinions of 28 Hero is the first one. Brad fabricated 38 experts. They judge the credibility and 20 the three claims against him. Now, we 20 thus they infer and draw reasonable 20 looked at the complaint -- and I have hoard 20 inferences from the evidence as to what the 21 you say that we aro accountable for the II witnesses say. Same type of analysis here 22 allegations of the complaint. That 22 in the sense that if it's the Court's 22 allegation is not in the complaint. You 22 responsibility, the jury's responsibility. 24 looked at it with me and you saw the word 24 They can find -- the Court can find 25 that said the claims wore weak. 25 overriding facts that may be relevant to 46 48 1 The words fabricated tie into ultimately the Court's analysis while 2 Rothstein, not Edwards. Put that aside for a minute and let's assume, Your Honor, that 2 rejecting or accepting other facts that coma up with regard to the Court's analysis. 4 this is the statement In the complaint. Is So in a vacuum we aro getting into a there a lack of probable cause in a 20-page 5 little bit far afield of what I would like 6 complaint with 79 allegations if Mr. Edwards can demonstrate that ono allegation happens to get back to, and that la, these individual evidentiary issues -- but -- you 8 to be untrue. One allegation. Is that know, I don't know whore else you want to go 9 enough for probable cause? What if we -- on this. Right now it is not before the 30 what if he can't prove that 75 of the :0 Court. 31 allegations wore not false? 31 MR. LINK: It is In a sense, if I can, 22 The jury instructions and the case law 22 Judge, which is this. This case has to be 32 doesn't let you parse through a complaint 13 tried differently, and the evidence will be .4 and say, uh-huh. I found this sentence that .4 different. 55 I don't think you can prove, or I found a 35 If for example -- and this is not 16 statement that I think is false, therefore 16 talking about whose burden of proof it is. 17 you don't have probable cause. 17 Mr. Scarola said it's his burden, so I guess 10 I harken back -- and I hate to say it. 10 he's going to try to prove the jury that 19 You've made it clear -- we aro not trying 19 specific allegations In the complaint wore 20 defamation -- but that is a defamation case. 20 untrue. That's what I heard him say he's 21 Because If I make 100 statements and 99 of 21 going to do. 22 them are accurate but one is false, guess 22 If he does that, what does that 23 what? You have a legitimate claim for 23 accomplish? Hero is what I mean by that? 24 defamation. 24 What the case law tolls us is that the jury 25 THE COURT: At the same tine -- again, 25 should Mike the decision about disputed Palm Beach Reporting Service, Inc. EFTA00801587 49 51 facts that were rolled on by the parson that 2 initiates the proceeding -- disputed facts. 3 They aro not supposed to look at the 4 sentence and determine if it's true or false. They are supposed to decide 6 If there's -- we say we relied on this fact, 7 they said wo didn't rely on this fact. Or -- or if wo say we relied on a fact, and 9 Mr. Scarola takes the position that you 10 didn't have a good faith basis to rely on 11 that fact because -- then that would be a 12 jury decision ab