EFTA00723608.pdf

Page 1 IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502008CA037319XXXXMB AB B.B., Plaintiff, -vs- JEFFREY EPSTEIN, Defendant. HEARING BEFORE THE HONORABLE DONALD HAFELE PLAINTIFF'S MOTION FOR INSPECTION AND TO COMPEL DISCOVERY (PHOTOGRAPHS) Monday, December 14, 2009 Palm Beach County Courthouse West Palm Beach, Florida 33401 8:32 - 8:43 a.m. Reported By: Cynthia Hopkins, RPR, FPR Notary Public, State of Florida Prose Court Reporting Original PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601.051-976.2934) bed5d662ac49.4c92.99 EFTA00723608  Page 2 1 APPEARANCES: 2 On behalf of the Plaintiff: 3 SPENCER T. KUVIN, ESQUIRE LEOPOLD KUVIN 4 2925 PGA Boulevard Suite 200 5 Palm Beach Gardens, Florida 33410 Phone: 561.515.1400 6 7 On behalf of the Defendant: 8 ROBERT D. CRITTON, JR., ESQUIRE 9 MARK LUTTIER, ESQUIRE BURMAN, CRITTON, LUTTIER & COLEMAN, LLP 10 303 Banyan Boulevard Suite 400 11 West Palm Beach, Florida 33401 Phone: 561.842.2820 12 13 14 15 1.6 17 18 19 20 21 22 23 24 25 PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601-061-976-2934) b0d5d662-ac49.4c92•B89f3cc3a76d584d EFTA00723609  Page 3 1 PROCEEDINGS 2 3 THE BAILIFF: Everyone please rise. 4 Circuit Court is now in session. The Honorable 5 Judge Hafele presiding. 6 MR. KUVIN: Good morning. 7 MR. CRITTON: Morning. 8 THE COURT: Welcome. I have read the 9 materials and motion to compel and inspect 1.0 relative to photographs, Mr. Kuvin. 11 MR. KUVIN: Yes, Your Honor. Since Your 12 Honor has read the motion, I will just add some 13 additional issues, and we'll try not to repeat 14 what is contained within the motion. With Your 15 Honor's permission, if I could argue from here? 16 THE COURT: Sure. 17 MR. KUVIN: The issue here is whether or 18 not a 14- or 15-year-old girl would know 19 specifically what a 50-year-old man's genitalia 20 looks like if for no other reason than illegal 21 reasons in this case. The issue is just like 22 in criminal court: If a victim or victims are 23 able to identify a perpetrator's tattoo on an 24 arm, then that perpetrator must stand up and 25 show the tattoo to a jury or identify whether PROSE COURT REPORTING AGENCY, INC. E;ectronically signed by cynthia hopkins (601.061-976.2934) bed5d662-ac49-402.1389f.3cc3a76d584d EFTA00723610  Page 4 1 or not that tattoo exists. 2 This is not a self-incrimination issue. 3 This is not testimonial evidence. Therefore, 4 it is intrinsically different than a scenario 5 of testimonial evidence where someone is forced 6 to testify against themselves. This is a 7 marking or a distinguishing feature on their 8 physical body. 9 With respect to the relevance issue, 10 Defendant argues that it is irrelevant because 11 BB has never said she has seen it. Well, the 12 problem is twofold. And I would agree with 13 Defendant on one point in that they have not 14 even sought to depose my client yet. 15 This is a 2008 case and I would have hoped 16 by now, by the time of this hearing which we 17 had noticed months ago, that they would have 18 noticed her for deposition so that we could ;9 find out exactly in her sworn testimony the 20 evidence of what she did or did not see. 21 THE COURT: Let me just stop you for a 22 moment. 23 MR. KUVIN: Sure. 24 THE COURT: It wasn't clear to me; I read 25 through the probable cause affidavit and in PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopecIrts (601-051.976.2934) bed5cl662-ac49-4c92-839f-3cc3a76d584d EFTA00723611  Page 5 1 there there is a description that we have dealt 2 with and we have heard about earlier relative 3 to Mr. Epstein but of course with the names 4 blacked out and no initials given within the 5 probable cause affidavit, the descriptions that 6 was provided was not provided by BB? 7 MR. KUVIN: That is correct, Your Honor, I 8 will agree that the description in the probable 9 cause affidavit specifically was not given by 10 BB but another young lady, the identity of 11 which frankly I do not know at this point as I 12 stand here today because I have the same 13 probable cause affidavit Your Honor has which 14 is blacked out. But that is true that specific 15 description in that probable cause affidavit is 16 not her. 17 THE COURT: The other question I have is 18 recognizing the delicate nature of the issue 19 but at the same time understanding as I 20 suggested pertaining to the discovery issues 21 that were brought by Plaintiff's counsel in 22 other cases, in this particular matter what I 23 am having difficulty on and what was touched 24 upon in Defendant's papers is the relevancy at 25 this juncture juxtaposed by the potentiality PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601-051.976.2934} bed5d66 -ac49-4c92 89 c a7 d EFTA00723612  Page 1 certainly at the very least once the deferred 2 prosecution agreement has expired to obtaining 3 the substantial equivalent by other means, 4 request for admissions, interrogatories, 5 depositions, once those things are handled. 6 But at this point particularly whereas 7 here the Plaintiff herself has not implicated 8 the Defendant's private parts as a material 9 portion of her case, explain to me why at this 10 juncture and prior to her deposition that it 11 would be logical and would be relevant for 12 discovery purposes recognizing, of course,. that 13 discovery is more liberal and to be more open 14 than admissibility, but at the same time also 15 noting that relevance for discovery purposes is 16 defined as tending to lead to the discovery of 17 admissible evidence, or relevancy for discovery 18 purposes being calculated to discovery of 19 admissible evidence. 20 I know I threw several questions at you at once. 22 MR. KUVIN: I was writing those down. I 23 would like to address those points and I think 24 they are good points and they need to be 25 addressed. PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601-061476-2934) bed5d662-ac.49-4c924891-3cc3a76d58441 EFTA00723613  Page 7 1 The issue, first of all, I think Your 2 Honor points out is what the Defendant, or 3 excuse me, what BB may or may not have seen 4 since she has not been deposed. And I am 5 certainly not at liberty to discuss my 6 conversations with her personally about what 7 she may or may not have seen. I cannot share 8 that at this time obviously with the Court 9 until she is deposed. So absent that, if we 10 set that aside -- 11 THE COURT: Well, just a minute. I 12 apologize for interrupting. What I want to say 13 is certainly once an objection is logged, a 14 statement or an affidavit to disclose at the 15 very least why the substantial equivalent at a 16 certain time could not be obtained by less 17 intrusive means than to require a Defendant to 18 have his private parts photographed and 19 examined may not be necessarily a breach of any 20 type of client confidence and that has not been 21 demonstrated. 22 MR. KUVIN: It is true that BB has not 23 said in any document right now whether it be 24 probable cause affidavit or interview with the 25 police that she has seen it. But I don't - • • , llin - ^^^=o i PROSE COURT REPORTING AGENCY, INC. Electronical sign by cynthia hopkins (601-051.976.2934) bed5d662-ae.49-4c92-889f-Scc3a76d584d g EFTA00723614  Page 8 1 believe frankly that is the issue. 2 The issue that we're looking at is, and 3 Your Honor points out a very good example of 4 why can't we defer this until such time as a 5 less intrusive means may be utilized; the 6 problem is, and frankly, I will agree to a 7 stipulation today that if Mr. Epstein will 8 respond to interrogatories and a request for 9 admissions at a date certain which is 10 reasonable in the future, then I have no 11 problem in obtaining that through another 12 means. 13 But I don't believe that Mr. Critton is 14 prepared here today to say that he will ever 15 respond to questions in a deposition, respond 16 to interrogatories, or request for admission. 17 And in fact during the three hours and a half I 18 spent with him, he took the Fifth Amendment on 19 every single question, literally almost every 20 single question that was asked of him except 21 for his name and some identity issues. 22 So, absent some stipulation that he will, 23 in fact, answer those questions in the future 24 to obtain that information in a least obtrusive 25 way, I think that the Court has before it PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601-051-976-2934) bed5d66 EFTA00723615  Page 9 1 obviously the issue now of the fact of a 2 Defendant who is refusing to answer those 3 questions with no hope in the future that there 4 is a less obtrusive way to get it. 5 As to the issue of whether or not it's 6 relevant to BB's claim though, there are two 7 issues there: The first is is that we look to 8 90.404(2) which is the issue of bad acts and 9 whether character evidence is admissible in 10 this proceeding. And this, I think, gets to 11 the real heart of the issue of how this case is 12 ultimately going to be tried and evidentiary 13 issues that Your Honor is going to have to rule 14 on later down the road. 15 If we look at the 90.404(2) I hate to do 16 this, but back to law school it is a rule of 17 inclusion, not exclusion. The rule says 18 similar fact evidence of other crimes, wrongs, 19 or acts is admissible. It never uses the word 20 inadmissible in the rule. But nonetheless it 21 is used in court as an inadmissibility rule. 22 So the rules says it's admissible when relevant 23 to prove a material fact at issue such as 24 motive, opportunity, intent, plan, preparation, 25 knowledge, identity, and the last one on our PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601-051-976-2934) bed5d662-ac49.4c92-8891.3cc3a76d584d EFTA00723616  Page 10 1 list is absence of mistake. 2 Now, I can only suppose what Mr. Epstein 3 is going to testify to, because as I said he 4 has taken the Fifth to every question we have 5 asked of him. 6 But we can glean through the interviews 7 that his attorneys have given to the press, 8 specifically Jack Goldberger who has stated to 9 the press that Mr. Epstein took a polygraph 10 exam on the issue of age of these young women 11 and he never knew that they were underage. 12 If, in fact, we can prove that of these 13 girls -- and right now we know through the 14 testimony of Chief Reiter, Chief of Police for 15 Palm Beach, that we're looking at at least 12 16 to 15 girls -- if, in fact, we can prove that 17 through those other women there was an absence 18 of mistake issue, in other words, he didn't 19 mistakenly think these girls were underage, he, 20 in fact, knew it, and he knew it very clearly, 21 then obviously evidence of all of these other 22 women become relevant to this case in chief. 23 THE COURT: Well, that may be true. 24 MR. KUVIN: That's point one. 25 THE COURT: What I am concerned about, and PROSE COURT REPORTING AGENCY, INC. onicatry signed by cynnwa nopKIns (601-051-976-2934) bed5d662-ac49.4c92.8891-3cc3a76d584d EFTA00723617  Page 11 1 I appreciate the point, and I certainly will 2 give you a couple of minutes to wrap up, but 3 what I am concerned about is the issue of 4 impeachment on a collateral matter. And one 5 may say, well, wait a minute, you know, this 6 type of evidence is certainly germane to the, 7 at least "lay" eye, or the public eye.. But is 8 it germane legally at this juncture? That's 9 the issue. 10 And really again as important as this may 11 seem to the general public perhaps because it 12 carries with it some type of prurient interest, 13 is it germane legally and is it not at this 14 juncture when utilized in conjunction with 15 404(2) which is reputation, character, and the 16 like, is it at this juncture not grounds or at 17 least fodder for impeachment on a collateral 18 issue relative to BB who has not, number one, 19 indicated in the PCA that Mr. Epstein's private 20 parts were a germane portion of her complaint 21 or had any relevance to her complaint. 22 MR. KUVIN: Two key points Your Honor 23 mentions at this juncture.. Obviously the issue 24 is whether or not she has been deposed, and as 25 Your Honor is well aware as I mentioned, she PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkIns (601-061476-2934) bed6d662-ac49-4c92-889 -3cc3a76 EFTA00723618  Page 12 1 has not, so we don't know her sworn testimony 2 at this point. We can't obviously get into 3 that. 4 So if Your Honor is inclined to defer this 5 ruling, then we defer to that issue at least 6 until her deposition is taken, if Your Honor's 7 belief is in that regard. 8 But as to the primary claim, this is not 9 impeachment on a collateral source. This is 10 not impeachment at all. This is in fact 11 exactly what 90.404(2) talks about. It is the 12 identity issue of the Defendant and whether or 13 not he can be identified but not only by BB but 14 the other victims of the crime. And therefore 15 if identity is an issue, it is to go to prove a 16 primary issue in the case, absence of mistake 17 primarily of Mr. Epstein with respect to the 18 ages of these young girls. 19 Therefore, it is to go to prove a primary 20 allegation in the complaint which is that he 21 was having sexual relationships with underage 22 women and not impeachment on a collateral 23 issue. It is not collateral. It is a primary 24 issue in this case. 25 But once again if there is a less -•. PROSE REPORTING AGENCY, INC. tron a y y cyn w opkins (601.051.976.2934) CO T bed6d662-ac49-4e92.889f-3cc3a76d584d EFTA00723619  Page 13 1 obtrusive means and Mr. Critton will stand up 2 here today and say to Your Honor, yes, 3 Mr. Epstein will answer questions from 4 Mr. Kuvin on X-date in the near future, then I 5 agree that that is a much less obtrusive means 6 to obtain this discovery. I do not think that 7 he is prepared to stipulate to that today. 8 THE COURT: All right. Thank you, 9 Mr. Kuvin. Mr. Critton? 10 MR. CRITTON: May it please the Court. 11 One is, first of all, Judge, is 90.404(2) was 12 argued. It was never part of the motion. 13 90.404 was argued, similar acts, that was 14 never part of the motion that was filed and 15 therefore we haven't responded. These are 16 completely new issues that have been raised 17 this morning. 18 Thirdly, there was reference to Chief 19 Reiter, that was not in his motion. 20 Fourth, I think that the Court is probably 21 correct at this point in time at least there is 22 nothing that Mr. Kuvin said on behalf of his 23 client that is as to what the physiology of 24 Mr. Epstein's private parts is in any way, 25 shape, or form germane at this time. PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601.061476.2934) bed5d662-ac49-4c92-8891-3cc3a704584d EFTA00723620  Page 14 1 Next point with regard to Mr. Kuvin's 2 references to sexual relationships with 3 underage women, we have deposed a number of the 4 individuals. None of those people have any 5 type of, quote, unquote, sexual relationships, 6 intercourse, oral sex, or anal sex with 7 Mr. Epstein, and nor did BB in this instance. 8 Now, getting actually to the motion that 9 he filed, I think that the Court, a couple of 10 things: I have, as the Court knows, there is 11 both State and Federal court cases. This Court 12 has all of the state court cases. This is the 13 only case, BB has no sworn testimony, nor did 14 she show up at this -- again, this motion has 15 been filed for three, four, five months at this 16 point. At any point BB could have come forward 17 through Mr. Kuvin and given an affidavit to the 18 Court that said I either saw Mr. Epstein's 19 private parts, or I didn't see them, or that in 20 some fashion shows that they are either 21 relevant or material or that goes to a material 22 issue in this case. 23 In fact, the complaint as the Court knows 24 from the motion or the response that we filed, 25 the compliant in this instance merely says that PROSE COURT REPORTING AGENCY, INC. Electron ca sign y cyn u 14916(601-051-976-2934) bed5d662ac49.4c92-889f-3cc3a76d584d EFTA00723621  Page 15 1 Mr. Epstein came into the bathroom, told the 2 girls to remove their clothes, they undressed 3 themselves. He placed a washcloth over his 4 private parts. They rubbed lotion on his body, 5 and then he began masturbating. 6 At no time does the complaint, nor is 7 there any sworn testimony in front of this. 8 Court that BB ever saw his private parts. I 9 would also represent to the Court at least what 10 T. have, what Mr. Kuvin has represented to me 11 and what he has represented to Mike Pike -- 12 again I don't want to hold him to that -- but I 13 would be surprised if there is any sworn 14 testimony by the Plaintiff in this particular 15 instance that she saw Mr. Epstein's private 16 parts. 17 Again BB is not part of the probable cause 18 affidavit. Not only does she not reference the 19 shape or any physiology associated with it, 20 she's not even one the people that were 21 interviewed by the police to the best of my 22 knowledge. And I am almost 99.9 percent, 23 100 percent confident of that. 24 BB is a one-time person. That is she 25 showed up one time to Mr. Epstein's home. PROSE COURT REPORTING AGENCY, INC. Elec ron ca y sign y cyn is hopkins (601.051-976.2934) beck5d662-ac49-402-889f.3ec3a76d584d EFTA00723622  Page 16 1 It's not relevant. It's not material. 2 There is no issue at least at this point in 3 time in front the Court, and I don't want to 4 belabor what the Court has already raised nor 5 what is set forth in our motion, but if she 6 didn't see his physiology, it's not relevant or 7 material. 8 And then the Court -- it can't be relevant 9 or material because it doesn't go to any 10 material issue in the case. 11 The Court also addressed the issue of is 12 there a less obtrusive manner in which to 13 obtain whatever his physiology is. In this 14 instance I think three or four of the 15 Plaintiffs have been deposed. 16 THE COURT: I am not sure the words are 17 synonomous, but the terminology I used was less 18 intrusive. 19 MR. CRITTON: And I said obtrusive. 20 THE COURT: So did Mr. Kuvin. 21 MR. CRITTON: He is obtrusive. 22 THE COURT: I want to make sure that the 23 terminology I used was -- 24 MR. CRITTON: Less obtrusive. 25 THE COURT: -- different than the two of 1.4....W.a••••• PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601-051476-2934) bed5d662-ac49-4c92-889f-3cc3a76d584d EFTA00723623  Page 17 1 you. 2 MR. CRITTON: One of the ways to do that 3 is a number of the females have been deposed in 4 particular instance. On more than one 5 occasion, I know I have asked, you know, what 6 was, was there anything unusual about 7 Defendant's physiology, and they have 8 testified. 9 Mr. Kuvin's office gets notice of 10 everyone's deposition and, in fact, he or 11 anyone else can ask or inquire of any of the 12 Plaintiffs as they are deposed, was there 13 anything unusual about Mr. Epstein's 14 physiology, his private area, separate and 15 apart from, you know, the other 4 billion 16 people. I guess only 2 billion would be males. 17 But at this point in time, I believe it's 18 premature, it's not relevant, it's not 19 material, and I will stand on our motion. And 20 also I would like the opportunity to depose the 21 Plaintiff first. 22 Again we're going to get another amended 23 complaint apparently. So at some point we'll 24 take her deposition, and if it, if it is 25 somehow relevant, then the issue can be brought PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601451-976-2934) bed5d662-ac49-4e92-889fac3a760584d EFTA00723624  Page 18 1 back in front of the Court. 2 THE COURT: Kindly remind me when the 3 deferred prosecution agreement is set to expire 4 presuming no further, or no breach of that 5 agreement occurs. 6 MR. CRITTON: My best information, sir, is 7 sometime in the latter part of 2010. 8 THE COURT: All right. Thank you, 9 Mr. Critton. 10 Mr. Kuvin, anything else you want to add? 11 MR. KUVIN: Just two things. Mr. Critton 12 points out that the motion has been on file for 13 three to four months, but they have chosen not 14 to depose BB despite this issue being before 15 this Court. He has had the opportunity to 16 depose my client on the issue and they have 17 chosen not to. 18 Secondly, which I didn't raise before and 19 Mr. Critton alludes to it, we have filed an 20 amended complaint as of Friday last week. It 21 is a motion to amend the complaint and add a 22 count for RICO violations as far as a 23 conspiracy. This is a sexual conspiracy that 24 Mr.-- an enterprise that Mr. Epstein had 25 developing on Palm Beach Island for some period PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601.051-976-2934) tred5d662-ac49-4c92-889f-Icc3a76d584d EFTA00723625  Page 19 1 of time. And as part of that enterprise, 2 obviously, this evidence would go directly to 3 that claim. 4 Now, the Court has not ruled on the motion 5 to amend yet, so I don't think it is properly 6 before the Court right now. But I just 7 obviously would not want anything to hinder our 8 ability to come back before the Court if and 9 when that is part of our complaint before Your 10 Honor. 11 Finally, the last point Mr. Critton raises 12 is the issue of other girls' description of his 13 genitalia. Obviously other girls' discretions 14 and memories are different than what it 15 actually looks like and whether or not these 16 girls are, in fact, remembering exactly what 17 this odd-shaped genitalia looks like. 18 THE COURT: All right. I want to thank 19 both counsel for their excellent presentations 20 as well as the written materials. It's very 21 much appreciated by the Court. 22 I am going to deny the motion at this 23 time. The denial is without prejudice to, if 24 and when as it concerns BB, the movant, 25 Mr. Epstein's private parts become material to PROSE COURT REPORTING AGENCY, INC. Electronically signed by Cynthia hopldns (601-051.976.2934) bed5d662-ac49-4c92-889f-3cc3a76d584d EFTA00723626  Page 20 1 her claim. 2 At this stage the Court finds that any 3 such request which is, in fact, significant and 4 significantly intrusive, would not be relevant 5 as it pertains to discovery noting the 6 difference between what may be relevant at the 7 discovery stage and what may be relevant for 8 admissibility at trial. But despite the 9 difference, the Court finds that without at 10 least some legal underpinnings to require this 11 type of intrusive request, the Court is without 12 legal authority to do so. 13 Again, the motion is denied without 14 prejudice, and if this particular issue does 15 become legally relevant, the Court will 16 re-address the matter at some point in the 17 future. 18 Again, I thank you both for your 19 professionalism, your courtesies, and your 20 presentations. 21 Thank you, Madam Court Reporter as well. 22 MR. KUVIN: Thank you, Your Honor. I do 23 have just one housekeeping matter I discussed 24 with Mr. Critton. He has an order that is 25 perfectly fine with me. PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkins (601-061476-2934) bed6d662-ac49-4c92-8891-3cc3a76d584d EFTA00723627  Page 21 1 MR. CRITTON: May I approach? 2 MR. KUVIN: We filed a motion to amend for 3 punitive damages on Friday. In conjunction 4 with that were the responses to BB's 5 interrogatories which includes the signature 6 page. 7 I discussed a procedure with Mr. Critton 8 removing the signature page which may identify 9 BB and substituting in a blacked-out page. I 10 just want to make sure that we have an order on 11 file to allow the clerk to remove that 12 signature page and just reinsert a blacked-out 13 page. 14 THE COURT: Any objection? 15 MR. CRITTON: No, sir, not under that 16 procedure. 17 MR. KUVIN: Thank you, Your Honor. 18 THE COURT: Do you want to send an order 19 then in on that? 20 MR. KUVIN: I will send an order on that 21 issue and so direct the Court's clerk. 22 THE COURT: All right. Thank you both. 23 MR. KUVIN: Thank you, very much. 24 THE COURT: Have a good rest of the week. 25 (The hearing was concluded.) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia hopkIns (601-051-976-2934) bed5d662-ac49-4c92-889f-3cc3a76d594d EFTA00723628  Page 22 1 CERTIFICATE 2 3 STATE OF FLORIDA 4 COUNTY OF PALM BEACH 5 6 7 I, Cynthia Hopkins, Registered Professional 8 Reporter and Florida Professional Reporter, State of 9 Florida at large, certify that I was authorized to 10 and did stenographically report the foregoing 11 proceedings and that the transcript is a true and 12 complete record of my stenographic notes. 13 Dated this 28th day of December, 2009. 14 15 S. 'S 16 17 e el nthia kijteHopkins, PR, FPR 18 19 20 21 22 23 24 25 PROSE COURT REPORTING AGENCY, INC. a signs cynt hopkins (601-051-976.2934) bad6d662ac09-4c92.669t3cc3a76d684d EFTA00723629