EFTA00801596.pdf

1 3 THE COURT: Good morning. Welcome UNCERTIFIED TRANSCRIPT DISCLAIMER IN THE MATTER OF back. All right as I understand it, you EPSTEIN want to start with the issue of the motion v. t to amend the answer and affirmative EDWARDS de . Is that accurate? MR. SCAROLA: That is, sir. Yes. THE COURT: I will be glad to do that. I have reviewed the materials from both 3 sides. Thank you for that. 10 MR. LINK: Whenever you are ready, 11 Judge. 12 THE COURT: Whenever you are ready, go 11 ahead, sir. 14 MR. LINK: Good morning, Your Honor. IS Scott Link on behalf of the plaintiff. It 16 is our motion for leave to amend the 17 affirmative defenses. You have to put that IS in context, Your Honer. IS That is, why do we need affirmative 20 defenses that sound in defamation, and they 21 do. The reason they do is because the 22 counter-plaintiff in this case has made it 21 very clear that they are trying the 26 allegations in the statements in the 2$ complaint. 2 4 I The following transcriptisl of proceedings, or any portion 1 At the last hearing, Hr. Scarola handed 2 thereof, in the above-entitled matter, taken on Decerber 2 this out and showed us vary clearly what 3 Sth, 2017, is being delivered MEDI= and UNCERTIFIED by s their plan is. And this is their plan. 4 the official court reporter et the request of Kere 4 They believe that we're trying the factual S Rockenbach, Esquire. 5 allegations of the complaint to aaa whether 6 The purchaser agrees not to disclose this uncertified and e they wore true or false. 7 unedited transcript In any form Written or electronic) Aa this Court knows, in the recent a To anyone who has no connection to this case. e Supreme Court case dealing with this case, 9 This is an unofficial transcript, which should NOT be the Supreme Court made it very clear that 10 relied upon for purposes of verbatim citation of :0 there is a narrow exception to the 11 teatissny. 21 litigation privilege. That exception is for 12 This transcript has not been checked, preofroad 22 malicious prosecution. But the Supreme 13 or corrected. It is a draft transcript, HOT a certified 29 Court told us in that opinion Your-Honor -- 14 transcript. As such, it imy contain tweeter-generated 24 I will share it with the Court -- the Is nastranslations of atenecype tole or electronic 35 Supreme Court told us in that opinion, Your 16 transmission errors, resulting in inaccurate or 16 Honor -- gave ua a roadmap. 13 nonsensical word combinations, or untranslated stenotype 17 The Supremo Court told us. Is siribola which cannot to deciphered by non-stenotypists. 19 THE COURT: That Debt'neat, Is Corrections will be nade in the preparation of the 19 D-E-B-R-1-W-C-A-T versus Fischer -- 20 certified transcript, resulting in differences in content, 20 MR. LINK: That's correct, Your Honor. 21 page and line motor*, punctuation and formatting. 21 THE COURT: -- from the Florida Supremo 22 This realtire uncertified and unedited transcript contains 22 Court, So.34 cite that the parties aro well 22 no appearance page, certificate page, index or 23 familiar with. 24 certification. 24 MR. LINK: If you are look at this 25 25 case, you will see that the Supreme Court Palm Beach Reporting Service, Inc. EFTA00801596  5 7 made it vary clear and gave us a roadmap. According to the Supreme Court, our 2 The Supreme Court said really simply -- and 2 complaint is protected. ft cannot commit 3 it makes sense -- that if the litigation defamation. No cannot commit any action 4 privilege applied to the elements of a that's based on wrongful words. The only 5 malicious prosecution action, chore would thing that's available is a claim for 6 never be a malicious prosecution action. malicious prosecution focused on the Plus the Supreme Court reaffirmed that initiation of the milt. every statement made in the proceeding On the last page of this opinion from 9 : the allegations of the complaint. the Supreme Court, the court tells us this: 10 the statements of witnesses, the statements 10 The filing of a lawsuit and the joining of a 11 of lawyers, and the statements of the judges 11 defendant Is the commencement of a judicial 12 are absolutely protected. That's why the 12 proceeding. 13 court lays out the elements. And the 13 It then says, really importantly, an 14 elements the court lays out talk about only 14 action roc malicious prosecution which is 35 the actual initiation of the lawsuit. is based as a matter of law on causing the 14 So if you turn, Your Honor, to page two 26 commencement of an original judicial of three, the court sots forth the elements. 27 proceeding -- that's what we need focus on. 18 We will talk about those elements. The 28 So If we are trying the statements and 29 Supreme Court really give us clarity. 29 the allegations of the complaint, if that's 20 At the bottom of the page two, it talks 10 what we are doing, then we have to have II about an original criminal or civil judicial affirmative dotlllll that protect us from a 21 proceeding -- an original proceeding. That 21 claim based on allegations in the complaint. 22 proceeding, according to the Supremo Court, 29 Tho last thing I want to show the 24 when you read the Fourth OCA division that's 24 Court, on Friday after our hearing, I took 25 cited, is the filling, it's the 15 the deposition of Mr. Edwards' export. 6 8 1 commencement, it's the action. Hay I approach. During the deposition 2 If you think about where this law came 2 of Dr. Jansen -- if you turn to page throe, from, it comes from the criminal system. If four and five, Your Honor, you will see what you think about the criminal system, simply their export wants to do. issuing a warrant, starting an The assignment was the level of 6 investigation, filing a criminal complain: dissemination of defaming statements -- 7 in and of itself can cause injury to your defaming statements. That's on page three. reputation. Page four. I refer to ties statement 9 So the Supreme Court tells us the act associating Hr. Edwards with the illegal 20 that is not protected by the litigation 10 activities of Hr. Rothstein's, the results 21 privilege is the initiation of a lawsuit. 21 of Hr. Rothstein's lawsuits as the defaming 21 If you look at the probable cause statements. 29 element, it says there was an absence of 29 So what Choy plan to do is put on an 24 probable cause for the original proceeding. 24 export to demonstrate that the allegations 36 It doesn't say claim. It doesn't 35 of the complaint were defaming and caused 16 allegation. It doesn't say statement. 16 damages, the defamation action. 17 So Mr. Scarola tolls us three times 17 There's nothing in the el/manta of 10 during this hearing on the 29th that what he 18 malicious prosecution that make it relevant 19 plans to do -- what he plans to do -- 19 for an expert to get on the stand and talk 20 reading from this transcript at page 82 -- 20 about defaming statements in the complaint. 21 the first thing Your Honor needs to 21 In fact, to do so violates the roadmap 22 determine is the issue we have boon focusing 22 that the Supreme Court just gave us. Thera 23 on. What are the factual allegations that 23 is no better authority than Dobrincat on how 24 we claim were maliciously prosecuted, and 24 this case should go forward. But If they're 25 then he goes to our complaint. 25 going to be allowed to put an expert on to Palm Beach Reporting Service, Inc. EFTA00801597  9 11 talk about defaning statements, if they are that sane umbrella. 2 going to bo allowed to put the allegations 2 MR. LINK: It does, Your Honor. of the complaint and test their truth or 3 Everything that we've asked the Court to 4 falsity, which aro protected by litigation allow us to amend is designed to protect our privilege, we then need to have affirmative record, frankly, that we believe that defenses that sounds like defamation. 5 everything in our pleading -- lot me glue Last point I want to point out in you an example. DobrIncat, Your Honor is this. It's in the 8 The Court dismisses Mr. Edward's count 9 analysis, and it's the second sentence of 9 for abuse of process based on litigation 10 the analysis. To law has long recognised 10 privilege. At the and of the suit when we 11 that judges, counsel, parties and witnesses 11 win, if we sued Mr. Scarola for malicious 12 should be absolutely exempted from liability 12 prosecution in going forward with this case, 13 to an action -- this is the key -- it 13 aro the statements he's node in this 14 doesn't say to defamation -- to an action. 14 proceedings -- for example, Mr. Epstein is a 15 To be specific, to any action for defamatory IS serial child molester -- aro they protected 16 words published in the course of the io because they're part of this proceeding? Or 17 judicial proceeding. 17 does he waive the privilege somehow because 16 So if we aro exempted from liability 16 we bring a malicious prosecution action? 19 for the words published in the lawsuit, then 19 This court tolls us very clearly we 20 we don't need those affirmative defenses, 20 could not sue Mr. Scarola for his because they will then have to focus on 21 statements. It is no purpose in the 22 probable cause for the judicial proceeding. 22 malicious prosecution action. 23 But If they aro going to by allowed to bring 23 But that's what this door is opening. 24 in allegations of the conplaint, truth or 24 That's what they want to do. And we suggest 25 falsity, then we need these affirmative 25 to Your Honor, we don't want to come back a 10 12 defenses. second time. No would like to try this ease 2 Otherwise, if you look at our answer in 2 once. No would like to focus on the 3 affirmative defenses, Your Honor, we don't 3 elements of malicious prosecution and not have any. Tho reason we don't have any is 4 try a defaming words case in front of the 5 we didn't raise advice of counsel. There's 5 jury. not a statute of limitation defense. No Thank you, Your Honor. have no affirmative defenses because we aro THE COURT: Okay thank you, Mr. Link. defending a malicious prosecution action. Mho is going to arguing on behalf of 9 But we ask this Court, if this Court is 9 Mr. Edwards? Mr. Burlington? 20 going to allow them to try the truth or 10 MR. BURLINGTON: May it please the falsity of the statements in the complaint, 11 Court. I am Phillip Burlington representing 12 that we bo allowed to anon our pleading. 12 Brad Edwards. 13 THE COURT: You aro not seeking to 13 I have not heard anything today that 24 amend to affirnatively defend on advice of 14 justifies their claim that the rights to 25 counsel? 15 petition the government provides them an 16 MR. LINK: We aro not, sir. They are 14 affirmative Oceans* as they allege in their 17 all defamation affirmative defenses. 17 fifth affirmative defense. That has nothing le THE COURT: Well, there's also the 18 to do with defamation. No have explained 19 constitutional affirmative defenses that you 19 why it is not a defense to a malicious 20 aro seeking to interpose dealing with the 20 prosecution case. Because as the US Supreme 21 petition to file against the government or 21 Court has stated very clearly, baseless 22 something along those lines. 22 litigation is not protected by the privilege 23 MR. LINK: Those aro all defamation. 23 to engage in petitioning of the government 21 They aro all protection of speech. 24 under the First Amendment. 25 THE COURT: I presume that falls under 25 I would note that oven considering the Palm Beach Reporting Service, Inc. EFTA00801598  13 15 presentation here, there is not a single the prejudice to our client. But I will got 2 case from any jurisdiction cited by them back to the legal insufficiency. 3 that says that any of these defenses aro The argument that the Debrincat case 4 valid in a malicious prosecution case. Not gives a roadmap is simply wrong. Debrincat 5 a single case. is not a roadaap. It is a dead end. It was 6 They have gone so far as to site the the determination that the litigation 7 Noerr/Pennington cases, which are anti-trust privilege OOOs not apply to a malicious cases involving efforts to lobby the prosecution case. 9 legislative and executive branches of And this is very clearly stated in the 10 government, and they have taken that and 10 paragraph preceding its conclusion. This 11 tried to apply it to the malicious 11 court has never hold that the litigation 12 prosecution case. That makes to sense. 12 privilege protects a litigant from the claim 13 Now, as to the other defenses, they 13 of malicious prosecution. And other 14 have also passed over two very critical 14 district courts have recognized that the 25 considerations which wore not addressed in 15 litigation privilege does not act as a bar 26 Choir motion -- and have not boon addressed 26 to a malicious prosecution claim. 27 hero, and I hope will not be addressed for 27 If the Florida Supremo Court was the first tine in the rebuttal, since wo 28 holding that it does not bar proof of the 29 addressed it very squarely in our 29 first element of malicious prosecution, they 20 response -- and that is, there aro throe 10 would have said that and said it remains in II grounds to deny a motion to amend. Ono is L force for the other elements. Clearly they 22 whore the party has abused privilege. The 22 would not have boon as categorical as they 22 second is whore the amendment would 29 were. 14 prejudice the opposing party, and than the 24 What they have done is try to parse out 25 third is whether the affirmative defenses 25 language, again trying to make the roadmap 14 16 would be futile because they are legally when it's clear this was intended to be a 2 insufficient. 2 dead and for that privilege. Now, in this case they've raised five And they talk about it's only the 4 affirmative defenses eight years into the initiation of the claim that subjects them 5 litigation and mere weeks before of this 5 to liability. But even in Debrincat when it 6 special setting that this Court had for this talks about the first element, it says an 7 month. original criminal or civil judicial 8 No pointed out in our response. There proceeding against the present plaintiff was 9 was no explanation why it took them eight commenced or continued. In this case, 20 years to dream up those affirmative :0 obviously, it was continued. 11 defenses. That Is an abuse of the They include the other elements, which 12 privilege, waiting until the ova of trial, 12 include that there was an absence of 19 after discovery is almost completely IS probable cause for the original proceeding. 24 concluded to raise multiple affirmative 14 That moans we can prove that the factual 25 defenses, many of which raise factual issues 15 allegations wore false, that the legal 16 that would require further discovery, 16 claims wore invalid, as a matter of law, and 17 possibly now exports, and maybe oven counter 17 nothing In Debrincat precludes that. 10 pleading. Those reasons in themselves aro 10 It was a simple, vary short decision 19 sufficient to justify denial of this motion. 19 for the Florida Supremo Court. And it 20 But, I have spend more time on the 20 simply said the privilege dons not apply to 21 futility, because I certainly understand 21 malicious prosecution claims. 22 that Your honor has always expressed concern 22 But oven putting aside Dobrincat, we 23 that people aro allowed to amend. And 23 have never had a defamation claim. We have 24 again, wo don't think that they should based 24 never alleged it. And they have this string 25 on the abuse of the privilege and based on 25 alto of cases that talks about how, well -- Palm Beach Reporting Service, Inc. EFTA00801599  17 19 it's called the single publication rule. If it. I nean, the fact that there aro similar 2 your cause of action is based on a 2 elements of danage does not convert defamatory publication, you can't avoid 3 malicious prosecution to a dofanation count. 4 defenses to defamation or the statute of And they have cited no case for that • limitations by pleading things like 5 proposition. • intentional inflection of emotional distress 6 But oven if we go a little deeper into 7 or tortious interference with business • those defamation claims to the defamation • relationships, so forth and so on. • defenses, they aro clearly invalid as a 9 It has nothing to do -- not a single 9 matter of law. 10 one of those cases had to do with malicious 10 For example, the fifth ono -- excuse 11 prosecution. 7ho only one that comes within 11 I have already addressed the fifth ono. 12 shouting distance is Fridovich. But in that 12 Tho sixth ono claims that Hr. Edwards 13 case, the Fourth District rejected the 13 is a public figure. Now, as noted 14 malicious prosecution case, because that 14 previously, this would raise a whole new 15 case arose out of family allegations that a 15 factual mat of issues plus perhaps the need le family member murdered somebody, and they le for experts. 17 wore essentially fighting over the *state. I? But the Gertz case makes It crystal 16 They created this conspiracy to bring 16 clear that a private attorney representing a 19 claims to the prosecutor to prosecute that 10 client, despite their involvement in a 10 family member for murder. That family 10 high-profile case, including their 11 member was ultimately convicted of 11 involvenent In a proceeding unrelated to 12 manslaughter. 12 their civil proceeding is not a public 13 So the Fourth District said that's not 13 figure, that you cannot convert -- they aro 14 a bona fide termination in your favor, so 14 very specific. You cannot convert a private IS they eliminate the malicious prosecution. 25 attorney representing a client into an 18 20 Then they wont with detonation counts and officer of the court to bootstrap yourself 2 related counts. It was a certified question 2 into saying it's a public official. 3 in Fridovich -- talks about defamation. And they also said in that case that we But they have cited no case from any aro not going to hold that someone who 5 jurisdiction that says that you can convert simply engages in their professional 6 a malicious prosecution case into a activities or has involvement in the defamation case, and then raise defenses community is converted to a public figure. that aro unique to detonation cases. And what they have attached to their 9 And this reliance on the deposition 9 motion to amend, which they claim Brad 10 taken recently is nothing but -- that was &Morels made hinsolf into a public figure is 11 a -- that was an expert on damages, and nothing more than website statements on the 12 damages to reputation as a result of false law rim whore Brad Edwards worked that 15 statements, which is an inherent part of a 15 talked about sone of his cases. And that's 14 malicious prosecution case. An they have 14 nothing more than his professional 25 cited no case to the contrary. IS responsibility and professional relationship 16 THE COURT: You have cases that cite 16 for purposes of getting clients. 17 affirmatively to that proposition? 17 THE COURT: Resume. le MR. BURLINGTON: Thera is a case called le MR. BURLINGTON: Excuse me? 19 Mancusi out of the Florida Suprono Court 19 THE COURT: Resume. 20 that define the elements and talked about it 20 MR. BURLINGTON: Sure. 21 is designed -- in fact, Debrincat says that 21 And there's nothing even -- only one of 22 malicious prosecution is balanced between 22 them mentions Epstein. 23 allowing people to bring suits and 23 So they have cited no case from any 24 protecting the reputation of the individual. 24 Jurisdiction that says that a defamation 25 So that's ono -- that's the nature of 25 count can result in either a higher burden Palm Beach Reporting Service, Inc. EFTA00801600  21 23 of proof or additional affirmative defenses So that case, the Nodar case, has 2 based on the nature of the individual who nothing to do with either the context of 3 was sued in the baseless litigation. this case or the cause of action that we had 4 Then their seven affirmative defense, brought. 5 just assorts generally just as a matter of And they've cited, as I've said, no 6 public concern, and thereof we have a higher malicious prosecution cases to support the 7 burden of proof. idea that any of these defenses can be Again, this is rather late in the gano valid. 9 to start changing, not only the factual 9 Now, as to the -- I believe it's the 10 issues, but the burdens of proof. But they 10 eighth and ninth affirmative defenses, they 11 also cite no case from any jurisdiction that 11 aro not affirmative defenses at all. 12 says a malicious prosecution case is altered 12 Affirmative defense, as the Florida 13 on the basis of whether there was a matter 13 Supremo Court has stated, is whore a 14 of public concern involved. 14 defendant essentially has to admit the 25 And hero, inverting that notoriety of 36 allegations of the pleading. But say -- 26 Mr. Epstein's criminal conduct into a matter 26 oven assuming that -- I have this defense or public concern is somewhat of a stretch. 27 you are limited in those matters in proving 16 But also, in the Gertz case there was 26 your case or in your damages. 29 notoriety in that criminal case. And Gertz 29 Their eighth affirmative defense simply 20 made It very clear that the private attorney 20 says this is nothing but a defamation suit. 2I representing a client in proceedings and in 21 That's not an affirmative defense. That is 22 related proceedings, which had a lot of 22 a legal proposition which they rely on to IS publicity, did not convert him to either a IS provide the predicate for the sixth and 24 public official or a public figure, and 24 seventh affirmative defenses, but it is 15 whether or not it was a matter of public 26 nothing but a statement of a legal 22 24 1 concern was not relevant. proposition. It is not a defense. 2 The case that they seemingly rely on is 2 The last affirmative defense claims the Nodar case, which is a Florida case that there aro known procedures that this 4 where the parent wont to the board of the court could put in place that could protect school board to speak out against a teacher 5 Epstoin's duo process rights in the context 6 that he believed was no properly preparing of the punitive damage claims. That's not the students, not properly teaching and was an affirmative defense. That's a 8 harassing his son. constitutional challenge in the proceedings 9 That was a public forum. It was an of this court. While I'm not saying they 20 executive branch, not a judicial branch. 10 can't raise constitutional challenges, it is 11 And all that the Florida Supremo Court hold 21 not a affirmative defense. 22 was in that context -- because it was a 22 I would add, they haven't specified a 23 matter of public concern in the appropriate 25 single thing that has happened thus far in 24 public forum -- there was a qualified 14 the context of punitive damages that has 36 privilege, and the malice would not be 36 deprived Mr. Epstein of any duo process 16 presumed from the defamatory statements. 16 rights. 17 Now, again, that was a defamation suit. 17 And I gave a brief summary in our 10 It was nothing about malicious prosecution. 10 response to all the protections that have 19 But as Justice Scalia noted in his 19 been established in the case law, in the 20 concurring opinion in the Salina case, 20 statutes for protecting duo process rights. 21 malicious prosecution has the qualify 21 And until and unless they coma to you 22 privilege built into lt, because wo have to 22 with a colorable argument that those 23 prove, not only a lack of probable cause, 23 procedures aro inadequate, there's nothing 24 but wo have to prove malice, and wo do not 24 for you to do in response that g 25 get a presumption of malice. 25 assertion that Kr. Epstein could never have Palm Beach Reporting Service, Inc. EFTA00801601  25 27 1 his duo process rights protected in the 2 for me, if you will, the issue of futility. 2 context of the punitive damage award. But 2 Because usually because of Florida's policy 3 what is clear is it's not an affirmative 3 on liberality of amendments even at trial -- 4 defense at all. 4 cases after trial that allows for amending 5 So, trying to parse out Debrincat to the pleadings -- the amendment is typically 4 say that the litigation privilege only allowed, and then the affirmative defenses 7 applies to ono element of the malicious aro attacked, traditionally by a motion to 0 prosecution claim, I submit is facially strike. 9 wrong in light of the complaint. And if Home your arguments on behalf of your 10 they believe that Debrincat, which concludes 10 client aro that these amendments are 11 by saying unequivocally that the litigation 11 essentially futile in the sense that I 12 privilege does not apply to malicious 12 analogize it with a cause of action brought 19 prosecution camas, they had an obligation 13 by a plaintiff in a given case where the 14 because they were a tag-along case. And the 14 plaintiff is alleging sone typo of -- 15 Florida Supreme Court, after issuing is attempting to allege soma typo of cause of le Debrincat, issued an order in our case 26 action that makes no legal sense, or it is 17 saying that Epstein should show cause why 27 barred by the existing precedent so as to 16 Dobrincat does not control. And In 20 make any amendments futile. 29 response, Epstein conceded that it did 29 I would suspect that that same analogy 20 control. There is no to parse out anything 20 could apply here. Albeit, this is the first 22 in Debrincat which would create entirely new 22 effort, at least as to these affirmative 22 law in Florida about parsing out elements of 22 defenses, that have been made. 29 malicious prosecution for either purposes of 29 But aro you suggesting that under no 24 forcing the plaintiff into a position of 24 reading of law and the facts that apply hero 25 having a defamation claim or of taking out 25 that it would be either amendable or that 26 28 1 specific elements of a malicious prosecution 1 any potential amendment based on these facts 2 claim and saying, oh we have defamation 2 and the law that have constituted those 3 defenses to these. s proposed affirmative defense would be 4 The falsity of the statements in the 4 futile? 6 ccmplaint aro entirely different fret a 5 HR. BURLINGTON: You aro correct that 6 publication, because it is the act of 4 normally when affirmative defenses aro 7 triggering the judicial mechanism forcing my initially asserted in a timely fashion that 0 client to defend, litigate, expend funds. e the mans of challenging their legal 9 And the falsity of those statements goes to , sufficiency is a motion to strike. 20 lack of probable cause, it goes to malice, :0 When a no motion to amend is 21 and it is an element that we can prove 21 presented -- especially this late fn the 22 caused harm, and we should get compensatory 22 game -- it would be a waste of judicial 29 damages. 29 resources for you to allow the amendment 24 Again, they cited no case. They relied 14 knowing that as a matter of law those 15 solely on Debrincat, and it is an extremely is defenses are invalid. 16 thin read upon which to entirely change the 16 And there are cases -- I'm not sure 17 law of malicious prosecution. And I believe 17 they're the ones cited in our response -- 10 that Your Honor should deny the motion based 10 but I have cited case on futility where if 19 on being untimely with no explanation. 19 they're legally invalid, they're necessarily 20 None of these cases are now. Debrincat 20 futile. 21 is the only one that's within the last few 21 And to go through the motion of 22 years. But they had time to raise that. 22 allowing them to amend, requiring us to Soya 23 All the others are established law. It just 23 to strike, allowing them to respond when the 24 doesn't apply here. 24 legal sufficiency is addressed in those 25 THE COURT: Let me ask you to explain 25 memos. Palm Beach Reporting Service, Inc. EFTA00801602  29 31 i They cited case law in their i There was one aspect of Mr. Link's 2 affirmative defenses themselves trying to 2 argument that I found extremely confusing. 3 )ustify them. So the futility Ss 3 And maybe it's Just some -- , different -- not different, but the need to 4 MR. LINK: Your Honor, you mind if I S do a motion to strike is different when the S move so I can -- 4 amendment is made, when you come to the 4 THE COURT: Fool free. 7 Court and seek it to exercise its discretion 7 MR. SCAROLA: -- some inability on my 8 to allow an amendment, if it is legally 8 part to comprehend the argument. But ho 9 invalid, there's no reason for the Court to 4 told us repeatedly that Edwards soaks to 10 allow it, because it would be futile. And 10 prove the falsity of the allegations of the 11 that's one of three ways of attacking the 11 complaint instead of proving there was no 12 motion to amend as discussed in all the case 12 probable cause to file the complaint. I 13 law. 13 think ho repeated that statement at least 14 Otherwise, to say it would be futile, I 14 three timers. And quite frankly, I have no 15 guess, we would have to oat into the factual 15 idea what that means. 1e analysis of whore the facts don't support Io In order to prove there was no probable 17 it. But there isn't much difference between 17 cause to file the complaint, we must look at 16 saying the facts don't support it and this 16 the factual allegations in the complaint and 19 ClOOSIVt apply as a matter of law t0 this 10 we must demonstrate that there was no 10 cause of action. 20 probable cause to file those specific II So I believe you are fully authorized 21 factual allegations. That is, w0 must prove 12 tO look at the merits of these claims, which 22 the factual allegations were false, and w0 19 have been argued in the motion and the 23 must prove that there was no reason t0 24 response -- and they've certainly had an 24 believe that they wore true. This wasn't a 15 opportunity today to argue what they thought 25 good faith mistake. 30 32 1 was the legal validity. I So the issues aro identical. And what 2 So to simply put that off and have 2 they were attempting to do by way of this 3 another hearing on it when the question here 5 motion to amend is to get right back to , is, do you allow amendments which I believe 4 whore they wore arguing last week, and that 5 aro clearly not valid to a malicious s is, they don't want to ever have to defend 0 prosecution cause of action. So I believe 0 against the claim that Bradley Edwards 7 you aro authorized to do it on that basis as 7 fabricated false charges against Jeffrey 6 well. 6 Epstein. They don't want to focus on that 0 THE COURT: Thank you, Mr. Burlington. 9 at all. And this is one more means by which 10 I appreciate your written and oral 10 to attempt to reargue that same position. 21 presentation, as well, Hr. Link. 11 THE COURT: Or fabricated false claims 12 MR. SCAROLA: May I add just a little 12 against Jeffrey Edwards Isic) or -- 13 bit to that? 15 MR. SCAROLA: Jeffrey Epstein. 14 THE COURT: I will give you a couple 14 THE COURT: Fabricated false -- 15 minutes. 15 MR. SCAROLA: Edwards fabricated false 16 MR. SCAROLA: Thank you very much, sir. 16 claims against Epstein. 17 THE COURT: After Hr. Scarola, 1• THE COURT: Correct. 10 Ms. Rockenbach, if you want to add something 18 MR. SCAROLA: Wo will help each other 19 you aro free to do so as wall. 19 out with that. 20 MS. ROCKEHBACK: Thank you, Your Honor. 20 THE COURT: Or vice versa for that 21 MR. SCAROLA: I don't think that it 21 matter, that Epstein fabricated false claims 22 will take a couple minutes. 22 against Edwards. Meaning, I am still not 23 It was ono aspect -- 23 sure whore the defendant in the malicious 24 THE COURT: Less than that? 24 prosecution claim, Mr. Epstein, stands as to 25 MR. SCAROLA: Yos, sir. 25 that issue, as to whether or not he's Palm Beach Reporting Service, Inc. EFTA00801603  33 35 conceding or not conceding. Soma of these affirmative defenses, MR. SCAROLA: That has boon 2 quite frankly, in handling defanation claims scrupulously avoided by the other side, Your 3 on numerous occasions in the past, I have 4 Honor. They don't want to face that issue 4 never seen before. I never try to stifle or even acknowledge it exists. I agree with creativity. But at the same tine, we have 6 Your Honor. 6 to take into account, not only judicial THE COURT: Thank you, Mr. scarola. resources, but what the essential argument 0 Mr. Link, couple things that I would of Mr. Burlington boiling it down to its 9 like you to focus on. First is that -- I 9 very essence is you can't fit a square peg 10 appreciate your bringing it to my attention, 10 into a round hole. And that is, that the 11 and I have hoard this before, about the 11 bulk of these affirmative defenses, because 12 punitive export's testimony on behalf of 12 they deal with defamation, ono, aro not 13 Mr. Edwards, that his research has revealed 13 pertinent. Two, even if they were, it's not 14 whatever number of instances whereby 14 a defanation claim. 15 Mr. Edwards' and Mr. Rothstein's names have 15 I certainly do not plan and will not 16 boon linked, presumably as a result of ie try a defamation claim. And also, again, Mr. Epstein's conduct. 17 oven if these could be conceivably construed 16 MR. LINK: Tea, Your Honor. 16 as defamation claims, they don't pass legal 19 THE COURT: I haven't road it very 10 muster. 20 closely. At this point I don't know much of 20 Sone of them, such as the affirmative 21 that testimony is going to got in. But 21 defense regarding the petitioning of the 22 irrespective of that, what Mr. Burlington 22 government, has, in my view, absolutely no 29 has emphasised and what the Court clearly is 23 application to this case, because if it did, 24 under the impression as to its utilisation, 24 it would have application to any lawsuit 25 is not to prove up any other element of the 25 just about that I could conceive of that 34 36 malicious prosecution claim, except for would be brought by any parson, by any 2 damages. 2 plaintiff, by any counter-plaintiff. For example, an affirmative defense to The application is completely in that aspect of the clain could potentially opposite to what we're doing here. This is be that Mr. Edwards failed to mitigate his 5 not rodrassable by virtue of petition to • damages by virtue of his own seal in seeking 0 government, as aro, and as were, publicity for his representation of Mr. -- particularly at the time of those two cases, for his representation of the alleged 6 Hoerr and Pennington, where there wore 9 v