EFTA01112555.pdf

IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CIVIL DIVISION AG CASE NO. 502009CA040800XXXXMB Judge David F. Crow JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, v. SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiffs. PLAINTIFF JEFFREY EPSTEIN'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM DEFENDANT BRADLEY EDWARDS AND FOR SANCTIONS Plaintiff, Jeffrey Epstein, by and through his undersigned counsel, hereby respectfully seeks the entry of an Order compelling Defendant Bradley Edwards to produce the documents listed in Edwards' privilege log, or, in the alternative, the entry of an Order compelling Edwards to serve a privilege log that fully complies with Fla. R. Civ. P. 280(bX5), and an in camera review of the documents specified below, together with an award of attorney's fees and costs, and in support thereof would show as follows: SUMMARY OF ARGUMENT On or about February 23, 2011, Edwards, in response to several orders entered by Judge Raymond Ray in the Bankruptcy Court, filed a one hundred and fifty-nine (159) page privilege EFTA01112555  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG log, claiming that over two thousand (2,000) documents are privileged.' This is Edwards' second privilege log that blatantly fails to meet the requirements for a legally sufficient privilege log under Fla. R. Civ. P. 1.280 (bX5), as interpreted by the Fourth District Court of Appeal in TIG Ins. Corp. v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001). In addition, although the Special Master required a master list of names contained in the privilege log, a description of the recipients of the documents, and identification of the individuals who received blind copies, Edwards failed to provide the names of the individuals who were copied directly or who received blind copies, and many recipients are insufficiently identified only as "Attorneys at RRA," "Staff," and "RRA Personnel.i 2 Edwards' gross failure to comply with Fla. R. Civ. P. 1.280(6)(5) prevents the Plaintiff and the Court from determining whether Edwards has made any valid privilege assertions and results in a waiver of the privileges claimed. Edwards has not provided sufficient descriptions of the documents to determine if the privilege(s) claimed are valid. Finally, Edwards claims privileges that do not exist under Florida law. ARGUMENT I. REQUIREMENTS FOR A PRIVILEGE LOG The requirements for a privilege log in Florida are set forth in Fla. R. Civ. P. 1.280(bX5), which provides as follows (emphasis added): I Edwards' privilege log is being filed contemporaneous with the filing of the subject motion. For ease of reference, excerpts from the log are attached hereto as exhibits. 2 After Epstein's Motion to Compel was heard on August 4, 2010, the Bankruptcy Court entered at least four (4) orders directing Edwards to prepare a privilege log, the last of which required the privilege log to be completed by January 31, 2011. The first log, served on January 26, 2011, was in woeful noncompliance with the TIG requirements. On February 23, 2011, another log was served by Edwards which again patently failed to comply with T1G requirements. The February 23, 2011 log is the subject of the instant motion. 2 EFTA01112556  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG Claims of Privilege or Trial Protection Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disposed in a manner that, without revealing information itself privileged, or protected, will enable other parties to assess the applicability of the privilege or protection. The key case in the Fourth District construing Fla. R. Civ. P. 1.280(b)(5) is TIG Ins. Corp., 799 So. 2d 339, in which the Fourth District Court of Appeal denied a petition for a writ of certiorari seeking review of an order requiring TIG, the homeowner's insurer, to produce documents for which objections on the basis of attorney-client and work-product privileges were made. The Fourth District noted in TIG that Rule 1.280(b)(5) is identical to its federal counterpart, Fed. R. Civ. P. 26(bX5), whose Advisory Committee Notes state that "to withhold materials without such notice is contrary to the rule, subjects the party to sanctions under rule 37(b)(2) and may be viewed as a waiver of the privilege or protection." 799 So. 2d at 340. The TIG court further observed that Local Rule 26.1(GX3)(b), of the United States District Court, Southern District of Florida, spelled out the requirements for a valid privilege log, id. at 341: Where a claim of privilege is asserted in objecting to any interrogatory or document demand, or sub-part thereof, and an answer is not provided on the basis of such assertion: (i) The attorney asserting the privilege shall in the objection to the interrogatory or document demand, or sub-part thereof, identify the nature of the privilege (including work product) which is being claimed and if the privilege is being asserted in connection with a claim or defense governed by state law, indicate the state's privilege rule being invoked; and 3 EFTA01112557  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG (ii) The following information shall be provided in the objection, unless divulgence of such information would cause disclosure of the allegedly privileged information: (A) For documents: (1) the type of document; (2) general subject matter of the document; (3) the date of the document; (4) such other information as is sufficient to identify the document for a subpoena duces tecum, including, where appropriate, the author of the document, the addressee of the document, and, where not apparent, the relationship of the author and addressee to each other. The Fourth District also quoted with approval from Abbott Laboratories v. Alpha Therapeutic Corp., 2000 U.S. Dist. LEXIS 20834, at *13 (N.D. III. Dec. 14, 2000), in which the court stated that a privilege log should: describe the document's subject matter, purpose for its production, and a specific explanation of why the document is privileged or immune from discovery. These categories, especially this last category, must be sufficiently detailed to allow the court to determine whether the discovery opponent has discharged its burden of establishing the requirements expounded upon in the foregoing discussion. Accordingly, descriptions such as 'letter re claim,' analysis of claim,' or 'report in anticipation of litigation'--with which we have grown all too familiar--will be insufficient. This may be burdensome, but it will provide a more accurate evaluation of a discovery opponent's claims and takes into consideration the fact that there are no presumptions operating in the discovery opponent's favor. Any failure to comply with these directions will result in a finding that the plaintiff-discovery opponents have failed to meet their burden of establishing the applicability of the privilege. (Citations omitted) Thus, a party invoking a privilege "must...provide sufficient information to enable other parties to evaluate the applicability of the claimed privilege or protection." Hoot Winc, LLC v. RSM McGladrey Fin. Process Outsourcing, LLC, 2009 U.S. Dist. 4 EFTA01112558  Epstein v. Rothstein and Edwards Case No. 502009CA040800,OOCXMWDiv. AG LEXIS 103045, at •9 (S.D. Cal. Nov. 4, 2009) (quoting Advisory Committee Notes to Rule 26(bX5)).3 TIG, 799 So. 2d at 341. II. EDWARDS' PRIVILEGE LOG VIOLATES FLA. It. CIV. P. 1.280(bX5) AND THE TIC REQUIREMENTS Edwards' privilege log clearly violates the requirements of Florida law, and is insufficient on its face, as first evidenced by Edwards' one hundred and ninety-one (191) attempts to shield documents from or to an unnamed "confidential source," especially for documents described as "Litigation Strategy." See Composite Exhibit A as an example of this frivolous claim. Second, and no less outrageous, is Edwards' use in approximately one hundred (100) log entries in the "to" and "from" categories of the generic terms "attorney and staff," "litigation," "RRA personnel," and "unknown staff attorneys at RRA." Such generic terms do not meet the TIG requirements. See Composite Exhibit B for examples. Edwards' numerous references to unnamed "Attorneys at RRA" are patently inappropriate, if not disingenuous, preventing in each instance a necessary determination as to whether Edwards has validly invoked a privilege. Without identification of the particular RRA attorney as the sender or recipient, it is impossible 3 See also Evans v. United Fire & Cas. Ins. Co., 2007 U.S. Dist. LEXIS 58578, at •9 (ED. La. Aug. 9, 2007) ("United has provided a privilege log, but it is insufficient on its face. Rule 26(bX5) requires such a log to 'describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.' "); Caplan v. Fellheimer Eichen Braverman & Kaskey, 162 F.R.D. 490, 492 (ED. Pa. 1995) (party's failure to explain nature of the assertedly privileged communication precluded court from determining whether privilege applied); Harper v. Auto-Owners Ins. Co., 138 F.R.D. 655, 664 (S.D. Ind. 1991) (requiring the log to list, for each separate document, the authors and their capacities, the recipients (including copy recipients) and their capacities, the subject matter of the document, the purpose for its production, and a detailed, specific explanation of why the document is privileged or immune from discovery). 5 EFTA01112559  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG to determine whether Edwards can properly shield the materials from disclosure. Such non-disclosure strongly suggests a deliberate effort by Edwards to prevent the disclosure of documents to and from Scott Rothstein and other employees at RRA (including other RRA attorneys, such as Russell Adler, who was implicated by Scott Rothstein himself in recent sworn deposition testimony) involved in the massive fraud at RRA. Third, Edwards' privilege log fails to indicate whether the documents were copied or distributed to third parties, or whether blind copies were sent to third parties, which the Special Master specifically required. See Privilege Log generally. Fourth, the privilege log fails to indicate whether the materials contain attachments. "Where a privileged document has attachments, each attachment must individually satisfy the criteria for falling within the privilege. Merely attaching something to a privileged document will not, by itself, make the attachment privileged." Leonen v. Johns-Manville, 135 F.R.D. 94, 98 (D.N.J. 1990). Edwards is not entitled to invoke a privilege with respect to attachments which themselves have not been described at all and lack the specificity required to determine whether any privileges apply. It is hard to fathom that not one of these documents listed in the log did not have an attachment. The Court should order that the attachments be produced. Fifth, it is readily apparent that the privilege log fails to adequately describe over two hundred (200) assertedly privileged documents with descriptions such as "in re Epstein," "litigation strategy," "Meeting" and "FYI." Such shorthand, cryptic labels, with no description whatsoever of the content of the materials, do not permit Epstein or the Court to begin to evaluate the applicability of the privileges claimed by Edwards. TIG, 799 So. 2d at 341 6 EFTA01112560  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG (quoting Abbott Labs, 2000 U.S. Dist. LEXIS 20834, at *13)("fDlescriptions such as 'letter re claim', 'analysis of claim' or 'report in anticipation of litigation'.. . will be insufficient."). Sixth, Edwards' privilege log does not disclose the type of documents that are assertedly privileged — e.g., email, letter, memo. See Privilege Log generally. In sum, Edwards' privilege log is grossly inadequate and in blatant violation of Rule I .280(b)(5), precluding Epstein and the Court from evaluating the applicability of the numerous privileges claimed. III. EDWARDS HAS NO VALID PRIVILEGE CLAIMS A. Edwards Has No "Confidential Source" Privilege Edwards objects to producing hundreds of pages of documents from or to a purportedly "confidential source." See examples in Composite Exhibit A. There are approximately one hundred and ninety-one (191) entries in the privilege log that cite a "confidential source." There is no Florida law, however, that gives Edwards the right to assert a privilege based upon "a confidential source." Indeed, a "confidential source" privilege applies only with respect to reporters protecting their sources. See, e.g., CBS v. Jackson, 578 So.2d 698, 700 (Fla. 1991) (journalists have a qualified privilege against revealing confidential sources of information). Edwards is not a reporter. Therefore, as a matter of settled law, Edwards has no valid objection based upon a "confidential source" privilege. The Court should order these documents produced forthwith. 7 EFTA01112561  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMR/Div. AG B. "Privacy Rights" Edwards objects to the production of approximately nine hundred and thirty (930) documents on the ground that they are "protected by privacy rights." See Privilege Log generally and examples in Composite Exhibit C. Remarkably, Edwards claims that approximately 75% of the documents listed are shielded from discovery by unspecified "privacy rights." His objections, however, do not identify the specific "privacy" privilege or describe the person whose privacy interests are assertedly at stake or the nature of the privacy interest at stake. Such amorphous "privacy rights" are non-existent under Florida law. No valid privilege can be raised in an attempt to protect purely generic "privacy rights." Section 90.501, Fla. Stat., expressly states in relevant part that "[e]xcept as provided by this chapter, any other statute, or the Constitution of the United States or of the State of Florida, no person in a legal proceeding has a privilege to . . . (3) [defuse to produce . . . any writing." Neither the Florida Evidence Code, other Florida statutes, or the Constitution, recognizes a privilege for generic "privacy rights" or precludes the production of documents in a legal proceeding based upon a general right of privacy. See La Roche v. Wainwright, 599 F.2d 722, 726 (5th Cir. Fla. 1979) (rejecting "fourteenth amendment rights to privacy" to protect marital relationship: "[W]e see no persuasive reason to extend the right of privacy, based as it is on "penumbras and emanations" of other more explicit constitutional rights, to evidentiary matters protecting marital relationships, long thought to be uniquely within the regulatory province of the individual states."). In sum, Edwards cannot hide behind a sham privilege based on "privacy rights." 8 EFTA01112562  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG C. Attorney-Client Privilege Does Not Apply to Non-Attorney-Client Communications Edwards invokes the attorney-client privilege with respect to thousands of pages of documents listed in 120 pages of his 159-page privilege log. See Privilege Log generally. Significantly, the log describes only three of these documents as attorney-client communications. See Exhibit O, Bates 02546-02547, 02809-02810, 02807-02808. There is no description or information provided by Edwards to suggest that any of the other documents claimed to be subject to the attorney-client privilege, actually arc. The following examples demonstrate Edwards' utterly cavalier and improper invocation of the attorney client privilege: 1) Priscilla Nascimento to "Attorneys at RRA" re: reserving a conference room; and 2) Beth Williamson to Bradley Edwards re: "Discussions about Brad's recovery." See Composite Exhibit E. The attorney-client privilege applies only to communications between counsel and client and cannot be asserted to block the discovery of communications that are not identified as attorney-client communications. See, e.g.,, §90.502, Ha. Stat., Skorman v. Hovnanian of Florida, Inc., 382 So. 2d 1376, 1378 (Fla. 4th DCA 1980). Accordingly, no attorney-client privilege attaches to communications that have not been specifically identified by Edwards as attorney-client communications. In addition, with respect to the numerous communications or documents to which Edwards has asserted the attorney-client privilege, Edwards must establish all of the following elements: (1) the asserted holder of the privilege is or sought to become a client; (2) the person to whom the communication was made (a) is a member of a bar of a court, or his subordinate, and (b) in connection with this communication is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers 9 EFTA01112563  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) not waived by the client. See § 90.502, Fla. Stat.; State v. Rabin, 495 So. 2d 257, 60 (Fla. 3d DCA 1986). The attorney-client privilege does not apply to communications between an attorney and a third party, or a person who is not a client. See State v. Rabin, 495 So. 2d at 260 (attorney-client privilege did not attach to attorney's communication with client's ex-wife). The attorney-client privilege is waived if the client voluntarily discloses the substance of the communication. See § 90.507, Fla. Stat.; Delap v. State, 440 So. 2d 1242, 1247 (Fla. 1983) ("[W]hen a party himself ceases to treat the matter as confidential, it loses its confidential character."). Edwards' woefully inadequate privilege log does not provide sufficient information to the enable Epstein and the Court to determine the applicability of the attorney-client privilege to thousands of communications listed in the privilege log. The alleged client involved is not disclosed with respect to each communication. The purpose of the document is not described. the The names of all recipients are not disclosed, preventing a determination as to whether attorney-client privilege was waived. No information is provided which would enable the Court and Epstein to determine whether the communications were intended to be disclosed to third parties or did not involve the giving of legal advice, in which case there is no privilege. See, e.g., Watkins v. State, 516 So. 2d 1043, 1046 (Fla. l g DCA 1987). D. The Work Product Privilege Cannot Be Determined From Edwards' Privilege Log Forty years ago, the Florida Supreme Court, in Surf Drugs, Inc. v. Vermette, 236 So. 2d 108, 112 (Fla. 1970), explained what is covered by the work product privilege: I0 EFTA01112564  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG Mhose documents, pictures, statements and diagrams which are to be presented as evidence are not work products anticipated by the rule for exemption from discovery. Personal views of the attorney as to how and when to present evidence, his evaluation of its relative importance, his knowledge of which witness will give certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his own convenience, but not to be used as evidence, come within the general category of work product. The work product doctrine protects documents and papers of an attorney or a party prepared in anticipation of litigation, regardless of whether they pertain to confidential communications between attorney and client. Fla. IL Civ. P. 1.280(bX2). See Southern Bell TeL & TeL Co. v. Deason, 632 So. 2d 1377 (Fla. 1994). Work product is a qualified immunity from discovery. See DeBartolo-Aventura, Inc. v. Hernandez, 638 So. 2d 988 (Fla. 3d DCA 1994). The work product privilege does not extend to materials intended for use as evidence at trial. Northup v. Acken, 865 So. 2d 1267 (Fla. 2004). Work product falls into two categories: I) "fact" work product consisting of factual information pertaining to a client's case that is prepared in anticipation of litigation or for trial by another party; and 2) "opinion" work product, which includes all attorney's mental impressions, opinions or conclusions about a client's case. The former is discoverable upon a showing of (a) need for the materials to prepare the party's case, and (b) inability to obtain the substantial equivalent of such materials without undue hardship. See, e.g., Metric Engineering, Inc. v. Small, 861 So. 2d 1248, 1250 (Fla. 1st DCA 2003). The latter is subject to nearly absolute immunity. See, e.g., Smith v. Ma. Power & Light Co., 632 So. 2d 696 (Fla. 3d DCA 1994). A trial court is instructed "to make particularized findings in support of its determination of which of the documents are, or are not, subject to the work product privilege." Dismas 11 EFTA01112565  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG Charities, Inc. v. Dabbs, 795 So. 2d 1038, 1039 (Fla. 4th DCA 2001). The party asserting the privilege must prove that the materials constitute work product. See, e.g., Prudential Ins. Co. of Am. v. Fla. Dept of Ins., 694 So. 2d 771, 773-74 (Fla. 2d DCA 1997) (objecting party provided affidavits stating that the documents were prepared in anticipation of litigation). See, e.g., Lloyds Underwriters of London v. El-Ad Villagio Condo. Ass 'n, 976 So. 2d 28 (Fla. 4th DCA 2008) (discovery order quashed where no in camera inspection was made). Thus, a trial court is not required to protect materials from discovery if a party makes no affirmative showing, and only makes "a blanket statement that these items were prepared in anticipation of litigation and are protected from disclosure without presenting evidence to support the claim." Wal-Mart Stores, Inc. v. Weeks, 696 So. 2d 855, 856-57 (Fla. 2d DCA 1997). Once the party seeking the documents challenges non-production, the burden shifts to the opposing party to establish that the materials were prepared in anticipation of litigation in which case they are discoverable upon a showing that the former has need of the materials and cannot obtain the equivalent without undue hardship. See, e.g., Tampa Med. Assoc., Inc. v. Estate of Torres, 903 So. 2d 259, 263-64 (Ha. 2d DCA 2005). Given the numerous violations on the face of Edwards' privilege log, including no descriptions of the types of communications, inadequate descriptions of the content of the communications, and no references to particular clients, Epstein and the Court have no way to determine whether the work product privileges claimed arc fact or opinion work product. See Privilege Log generally. It is essential that sufficient information be provided by Edwards to distinguish between fact and opinion work product. The need to ascertain which "facts" arc 12 EFTA01112566  Epstein v. Rothstein and Edwards Case No. 502009CA 040800XXXXMB/Div. AG being protected is particularly critical given the testimony by Scott Rothstein of extensive fraud at RRA, and Epstein's right to discoverfact work product upon a showing of need. E. Pooled, Joint Defense or Common Litigation Interest Cannot Be Determined from the Privilege Log Litigants who share "unified interests" may exchange privileged information to prepare their case without losing the benefit of the attorney-client interest pursuant to the "joint defense," "common interest" or "pooled information" exception. Visual Scene, Inc., v. Pilkington Bros., 508 So. 2d 437, 440 (Fla. 3d DCA 1987). The exception has been recognized in the case of co-defendants, co-parties to potential litigation, members of a class of plaintiffs pursuing separate suits, and defendants in separate actions. Id (citations omitted). However, the joint defense privilege, more properly identified as the "common interest rule," see generally Capra, The Attorney-Client Privilege In Common Representations, 20 Trial Lawyers Quarterly, Summer 1989, at 20, has been described as an extension of the attorney client privilege, Waller v. Financial Corp. of Am., 828 F.2d 579, 583 n.7 (9th Cir. 1987). It serves to protect the confidentiality of communications passing from one party to the attorney for another party where a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel. See United States v. Bay State Ambulance and Hosp. Rental Serv, 874 F.2d 20, 28 (1st Cir. 1989). Only those communications made in the course of an ongoing common enterprise and intended to further the enterprise are protected. Eisenberg v. Gagnon, 766 F.2d 770, 787 (3d Cir.), cert. denied 474 U.S. 946, 106 S. Ct. 342, 88 L. Ed. 2d 290 (1985); Matter of Bevil!, Bresler & Schulman Asset Management Corp., 805 F.2d 120 (3d Cir. 1986). United States v. Schwimmer, 892 F.2d 237, 243 (2d Cir. N.Y. 1989) (emphasis added). Thus, "parties seeking to invoke the exception must establish that they 13 EFTA01112567  Epstein v. Rothstein and Edwards Case No. 502009CA0408003COMMB/Div. AG agreed to engage in a joint effort and to keep the shared information confidential from outsiders." Ken's Foods, Inc. v. Ken's Steak House, Inc., 213 F.R.D. 89, 93 (D. Mass. 2002). See also United States v. Sawyer, 878 F. Supp. 295, 297 (D. Mass. 1995) (despite similar interests between employer and employee, there was insufficient evidence that communications were made during the course of a joint defense effort; proponent could not establish the time frame of the purported agreement or the acts creating and/or terminating the agreement). Edwards' privilege log does not establish that the communications listed were made during the course of an "ongoing common enterprise," does not establish relevant time frames, and does not establish that "a joint defense effort or strategy has been decided upon and undertaken by the parties and their respective counsel." North River Ins. Co. v. Columbia Casualty Co., 1995 U.S. Dist. LEXIS 53, at •7 (S.D.N.Y. Jan. 5, 1995) (citation and quotation omitted). Given the critical gaps in Edwards' privilege log, it is impossible to determine whether Edwards can properly invoke the "common interest" doctrine to preclude discovery. IV. EDWARDS' FAILURE TO SUPPLY AN ADEQUATE LOG WAIVES THE PRIVILEGES CLAIMED AND SUPPORTS SANCTIONS AGAINST EDWARDS It is settled that the failure to supply a privilege log which complies with Florida law results in the waiver of a privilege under Florida law. TIG, 799 So. 2d at 341 ("Any failure to comply with these directions will result in a finding that the plaintiff-discovery opponents have failed to meet their burden of establish[ing] the applicability of the privilege."). The TIG court noted that Rule 1.280(B)(5) "uses mandatory language, and federal courts have found waiver where the federal rule was violated." Id. (citing cases). The TIG court concluded that there was 14 EFTA01112568  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG no departure from the essential requirements of the law in compelling production based upon a privilege waiver: "Because the trial court did not have the benefit of specific descriptions of the documents, we assume that the court found a waiver." Id. at 342. See also Century Bus. Credit Corp. v. Fitness Innovations & Techs., Inc., 906 So. 2d 1156, 1157 (Fla. 4th DCA 2005) (the court denied a petition for certiorari directed to an order finding a waiver of privilege in regard to the production of documents because the petitioner filed a privilege log which was "completely inadequate"); Kaye Scholer UP v. Zalis, 878 So. 2d 447, 449 (Fla. 3d DCA 2004) (the purpose of the privilege log requirement is "to identify materials which might be subject to a privilege or work product protection so that a court can rule on the 'applicability of the privilege or protection' prior to trial...Failure to comply with the requirements of Rule 1.280(6)(5) results in the waiver of any attorney-client and work-product privileges."); Omega Consulting Group v. Templeton, 805 So. 2d 1058, 1060 (Fla. 4th DCA 2002) (noting that where a privilege log "filed by the corporations did not contain sufficient detail to comply with the requirements of Florida Rule of Civil Procedure 1.280(b)(5)," the attorney-client privilege may be waived). Edwards has had ample opportunities to file a proper privilege log, and has declined to do so. Given his blatant violation of Rule 1.280(bX5), the magnitude of the deficiencies in his privilege log, and his cavalier invocation of numerous clearly inapplicable and/or non-existent privileges, this Court should enter an order finding a waiver and requiring production of the documents requested. See TIG. In the alternative, the Court should compel Edwards to produce a privilege log that strictly complies with TIG and the requirements of Rule 1.280 in order that Epstein and the Court can reasonably determine whether any valid privileges have been asserted and were not waived. 15 EFTA01112569  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG At a minimum, and as soon as convenient, the Court should conduct an in camera inspection of the documents referenced in In 20, 22-4 of the Corrected Second Amended Complaint and determine whether any of the privileges asserted by Edwards to block the production of these highly relevant materials are valid or have been waived. These materials — approximately thirty (30) emails — were sent to or from Edwards during the critical period of May to October, 2009, when the Ponzi scheme was imploding. The critical nature of these documents is vividly demonstrated by Rothstein's testimony during his recent deposition that he had asked Edwards or Adler to specifically set aside a flight manifest for an Epstein private jet. (Tr. Rothstein Depo 12/21/11 at 2278). Rothstein further testified that he showed boxes with Epstein files to the Discala investors in his office, disclosing the actual names of the parties "as a way of me attempting to induce them to invest further." (Tr. Rothstein Depo 12/20/11 at 1917; see also Tr. 12/21/11 at 2278). Rothstein explained with regard to Edwards' lawsuits that "this was a big ticket because there was the defendant and he's a wealthy guy" and was associated with public figures who did not want their names dragged through the mud. (Tr. Rothstein Depo 12/21/11 at 2283).4 Thus, because the documents specifically referenced in the Corrected Second Amended Complaint are critical to the continued deposition of Rothstein in June, 2012, an in camera inspection should be conducted of those documents prior to that time, although entries 4 It is important to note that in light of Rothstein's testimony, potentially relevant during this time frame — including, Edwards to "Attorneys at RRA" re: "Flight logs for Epstein," Bradley Edwards to "Attorneys at RRA" re: "Subpoena Clinton," Bradley Edwards to "Attorneys at RRA" re: "Investigation Epstein's planes," Bradley Edwards to "Attorneys at RRA" re: "Epstein meeting," and Priscilla Nascimento to ""Attorneys at RRA" re: "Epstein's Conference Room Reserved" — raise disturbing questions as to whether the "Attorneys at RRA" designation used by Edwards in his log is meant to disguise communications to Rothstein and others involved in the Ponzi Scheme. 16 EFTA01112570  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG Epstein does not hereby waive the right to an in camera review with respect to any of the other materials referenced in the Privilege Log. Finally, the actual prejudice to and impact on Epstein by Edwards' willful and continued non-compliance is palpable. Epstein has been prejudiced because he has not been able to conduct critical discovery necessary for the prosecution of his claims, and necessary for opposition to Edwards' summary judgment motion. Epstein has spent tens of thousands of dollars in attorney's fees trying to obtain the requested documents from Edwards and address privilege log issues. Sanctions should be imposed on Edwards to prevent unfair prejudice to Epstein and to insure the integrity of the discovery process. See Aztec Steel Company v. Florida Steel Corp., 691 F. 2d 480, 482 (11th Cir.1982). In sum, pursuant to Fla. R. Civ. P. 1.280, this Court should enter an Order finding that Edwards' privilege claims are waived, requiring Edwards to produce the documents requested by Epstein, and requiring Edwards to pay the reasonable expenses incurred by Epstein, including attorney's fees, costs, payments to the Special Master caused by Edwards' failure to provide a timely and legally sufficient privilege log, and granting such other and further relief as the Court deems necessary and proper. Respectfully sub(fitted, , 4Ackerman, .,. ), lorida Bar No. 235954 Jr. FOWLER WHITE BURNETT, P.A. 901 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401 Telephone: (561) 802-9044 Facsimile: (561) 802-9976 Attorneys for Plaintiff Jeffrey Epstein 17 EFTA01112571  Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Div. AG and Christopher E. Knight Florida Bar. No. 607363 FOWLER WHITE BURNETT, P.A. Espirito Santo Plaza, 14th Floor 1395 Brickell Avenue Miami, Florida 33131 Telephone: (305) 789-9200 Facsimile: (305) 789-9201 Attorneys for PlaintiffJeffrey Epstein CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via U.S. Mail on this 8th day of February, 2012 to: Jack Scarola, Esq., Searcy Denney Scarola Barnhart & Shipley, P.A., 2139 Palm Beach Lakes Blvd., West Palm Beach, FL 33409; Jack Alan Goldberger, Esq., Atterbury, Goldberger & Weiss, P.A., 250 Australian Ave. South, Suite 1400, West Palm Beach, FL 33401-5012; and Marc S. Nurik, Esq., Law Offices of Marc S. Nurik, One East Broward Blvd., Suite 700, Fort Lauderdale, FL 33301. 1 ) oseph L. Ackerman, Jr. 18 EFTA01112572  Privilege Log — Dated 2-23-2011 farmer. Jaffe, Weissing, Edwards. Fistos & Lehrman BATES DATE TO MOM DESCRIPTION OBJECTION discovery of admissible evidence 05693-05695 05/28/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence 05698 08/21/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence 05706-05709 05/28/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence 05720-05721 05/29/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence 05738-05739 05/29/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence 05743-05745 05/29/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to tbble i 3r discovery of admissible evidence n 05754 08/03/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence C 05759-05762 06/01/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence rn 05765-05768 06/23/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to t21 discovery of admissible evidence 05771-05773 06/03/2009 Bradley Edwards Confidential Source Additional Information RE: W/P Priv.; not reasonably calculated to lead to Epstein Molestations discovery of admissible evidence 05777.05779 06/03/2009 Bradley Edwards Confidential Source Additional Information RE: W/P Priv.; not reasonably calculated to lead to Epstein Molestations discovery of admissible evidence 05784-05786 06/03/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence 05791-05794 06/03/2009 Bradley Edwards Confidential Source Additional Information RE: W/P Priv.; not reasonably calculated to lead to Epstein Molestations discovery of admissible evidence 05803 07/22/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence 05836-05837 07/08/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence 05842-05843 07/08/2009 Bradley Edwards Confidential Source Providing New Witnesses W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence 49 EFTA01112573  Privilege Log — Dated 2-23-2011 Farmer, Jaffe. Weissing, Edwards. Fistos & Lehrman BATES DATE TO FROM DESCRIPTION OBJECTION 05848 07/28/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence 05852-05853 07/29/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence 05857.05858 07/31/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to discovery of admissible evidence 05952-05953 08/25/2009 Bradley Edwards Confidential Source Litigation Strategy W/P Priv.; not reasonably calculated to lead to