EFTA00597791.pdf

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff, vs. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and L.M., individually, Defendant, DEFENDANT/COUNTER- RESPONSE IN OPPOSITION TO PLAINTIFF/COUNTER MOTION FOR SUMMARY JUDGMENT ON DEFENDANT/COUNTER- FOURTH AMENDED COUNTERCLAIM Defendant/Counter-Plaintiff Bradley J. Edwards, by and through his undersigned counsel, hereby submits this Response in Opposition to Plaintiff/Counter-Defendant Jeffrey Epstein's Motion for Summary Judgment. Epstein seeks Summary Judgment on the claims of abuse of process and malicious prosecution set forth in Brad Edwards' Fourth Amended Counterclaim. Each of the grounds asserted in support of Epstein's Motion for Summary Judgment are without merit and must be denied. In Epstein's Amended Complaint he carries forth the essence of all claims asserted in his original Complaint. In that pleading Epstein essentially alleges that Edwards joined Rothstein in the abusive prosecution of sexual assault cases against Epstein to "pump" the cases to Ponzi scheme investors. The purported "proof' of the allegations against Edwards, as referenced in the Second Amended Complaint and in Epstein's Motion for Summary Judgment, includes Edwards' alleged contacts with the media, his attempts to obtain discovery from high profile persons with whom Epstein socialized, press reports of known illegal activities, the use of "ridiculously inflammatory" language and arguments in court. But as the evidence submitted in opposition to Epstein's Motion for Summary Judgment reflects, Epstein filed his claims and continued to pursue claims despite his knowledge that his claims could never be successful because they were both false and unsupported by any reasonable belief of suspicion that EFTA00597791 Case No.: 502009CA040800XXXXMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 2 of 15 they were true. Epstein knew that he had in fact molested each of the minors represented by Brad Edwards. He also knew that each litigation decision by Brad Edwards was grounded in proper litigation judgment about the need to pursue effective discovery against Epstein, particularly in the face of Epstein's stonewalling tactics. Epstein also knew that he suffered no legally cognizable injury proximately caused by the falsely alleged wrongdoing on the part of Edwards. Moreover, Epstein had no intention of waiving his Fifth Amendment privilege against self-incrimination in order to avoid providing relevant and material discovery that Epstein would need in the course of prosecuting his claims and to which Edwards was entitled in defending those claims. Epstein knew that his prosecution of his claims would be barred by the sword-shield doctrine. Most significantly, the evidence submitted in the supporting papers would compel a fact finder to determine that Epstein had no basis in law or in fact to pursue his claims against Edwards and that Epstein was motivated by a single ulterior motive to attempt to intimidate Edwards and his clients and others into abandoning or settling their legitimate claims for less than their just and reasonable value. The evidence demonstrates that Epstein did not file these claims for the purpose of collecting money damages since he knew that he never suffered any damage as a consequence of any alleged wrongdoing by Edwards but filed the claim to require Edwards to expend time, energy and resources on his own defense, to embarrass Edwards and impugn his integrity and deter others with legitimate claims against Epstein from pursuing those claims. Indeed, the evidence demonstrates that Epstein continued to pursue his claims by filing the Second Amended Complaint alleging abuse of process against Edwards even after he had paid significant sums in settlement of the claims instituted by Mr. Edwards' clients against Mr. Epstein.' The evidence marshalled in support of these assertions is set forth in the previously filed documents in this Court. Those documents include Exhibit "A" — Edwards' Statement of Undisputed Facts; Exhibit "B" — Edwards' Renewed Motion for Summary Judgment; Exhibit "C" — Edwards' October 19, 2012 Second Renewed Motion for Leave to Assert Claim for Punitive Damages; Exhibit "D" — Edwards' Notice of Filing of Transcript of Telephone Interview of in Support of Motion for Leave to Amended to Assert Punitive Damages; Exhibit "E" — Transcript of Deposition of Jeffrey Epstein dated January 25, 2012; Exhibit "F' — Deposition of Bradley Edwards dated March 23, 2010; Exhibit "G" - Deposition of Scott Rothstein dated June 14, 2012; Exhibit "H" — Order of EFTA00597792 Case No.: 502009CA040800XXXXMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 3 of 15 The record reflects that on the eve of the hearing of Edwards' Motion for Summary Judgment directed to the Second Amended Complaint and in light of the compelling evidence of the lack of any wrongdoing on the part of Mr. Edwards, the sole remaining abuse of process claim was dismissed by Epstein. As discussed, infra each of the grounds asserted by Epstein in this Motion for Summary Judgment must be rejected. The litigation privilege does not serve as a bar to the prosecution of Edwards' claims against Epstein. Moreover, the evidence submitted by Edwards supports each of the elements of the claims asserted by Edwards against Epstein which are identified in Epstein's Motion. Response to Epstein's Statement of Undisputed Facts The evidence marshalled by Edwards in support of his claims against Epstein which are referenced in footnote 1 mandates the conclusion that, at a minimum, disputed facts exist with respect to the elements of each claim addressed by Epstein in his Motion. The facts presented in the various papers would allow the jury to make a determination that Epstein knew that Brad Edwards properly exercised his legitimate judgment regarding the need to pursue proper and effective discovery against him to support the claims which Epstein knew were legitimate. That evidence, referenced herein, further demonstrated that Epstein filed his claims without probable cause and further that there was a bonafide termination in favor of Edwards. That evidence further demonstrates that the elements of the claim of abusive process have been established. The following additional comments are directed at some of the key purported "undisputed" material facts asserted by Epstein, especially those referenced in his Memorandum of Law. Also set forth are key evidentiary matters which undermine Epstein's contentions and which support the proposition that material issues of fact exist which compel the denial of the Motion for Summary Judgment. Judge Crow dated March 29, 2012; Exhibit "1" — Deposition of Bradley Edwards dated October 10, 2013; Exhibit "3" — Deposition of Bradley Edwards dated May 15, 2013. EFTA00597793 Case No.: 502009CA040800LXXXIMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 4 of 15 None of the public materials identified by Epstein in his Motion make reference to any wrongdoing by Brad Edwards. Rather, Epstein seeks to pyramid one impermissible inference upon another from his citation to these materials to support his otherwise unsubstantiated and non-verifiable conclusion that he had sufficient evidence to proceed with claims of wrongdoing against Edwards. In truth, as reflected in Edwards' deposition and his supplemental affidavit, he has no involvement in any fraud perpetrated by Rothstein (Edwards' deposition of March 23, 2010 at 301-302; Edwards Affidavit attached to Statement of Undisputed Facts as Exhibit "N" at paragraphs 8-10, paragraph 20, paragraphs 22-23; Exhibit "H" — Deposition of Scott Rothstein at pp. 62-63, 114, and 121-124). Therefore, any allegations relating to activities simply have no bearing on the legitimacy of any of the claims against Edwards. Edwards could not have possibly "pumped" cases to investors when he never participated in any communications with investors. Rather, Edwards had a duty to his clients to zealously pursue discovery to achieve a maximum recovery against Epstein. Edwards cannot be liable for taking appropriate action that his ethical duties as an attorney required. The evidence also reflects that Edwards filed all three of his cases almost a year before he was hired by RRA or even knew Scott Rothstein (Edwards' Affidavit, Exhibit "N" attached to Statement of Undisputed Facts). The language set forth in his Complaints remain virtually unchanged from the first filing in 2008 and, as the evidence shows, the claims asserted against Epstein from the outset were true. The citation to public documents is a convenient ruse; Epstein was not only liable for the molestation of the clients of Brad Edwards, he was also a serial molester of minors — even as young as twelve years of age (Exhibit "A" — Edwards' Statement of Undisputed Material Facts paragraphs 1-43; Exhibit "D" — Statement of pp. 16-17). Epstein entered a plea of guilty to felony charges involving prostitution and the solicitation of a minor for the purposes of prostitution (Exhibit "E" — Deposition of Jeffrey Epstein, March 17, 2010, pp. 101-103). Epstein also entered into an agreement with the United States Office acknowledging that approximately 34 other young girls could receive payments from him under the EFTA00597794 Case No.: 502009CA040800)OOOCMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 5 of 15 Federal Statute providing for compensation to victims of child abuse.. (Exhibit "A" — Edwards' Statement of Undisputed Material Facts, paragraphs 41-43). On July 6, 2010 Epstein ultimately paid to settle all three of the cases Edwards had filed against him (Exhibit "A" — Edwards' Statement of Undisputed Material Facts, paragraphs 84-85). At Epstein's request, the terms of the settlement were kept confidential. The sum that he paid to settle all these cases in therefore not filed with this pleading and will be provided to the court for in camera review. Epstein chose to make this payment as a result of a Federal Court ordered mediation process which he himself sought. Epstein entered into the settlements in July 2010 more than seven months after he filed his lawsuit against Edwards and before he filed his Second Amended Complaint alleging abuse of process on August 22, 2011. Further, Epstein could not have been the victim of any scheme to pump the cases against him because he never paid to settle the cases until well after Edwards had left RRA and severed all connection with Rothstein in December 2009 (Edwards' Affidavit attached to Statement of Undisputed Facts as Exhibit "N," paragraph 20). Moreover, Epstein could not have suffered any damage as a result of the perpetration of the Ponzi scheme by Rothstein because he was not an investor in the scheme. Perhaps the most significant evidence presented in opposition to Epstein's Motion for Summary Judgment is the telephone interview of -ubmitted in Support of Edwards' Motion for Punitive Damages (Exhibit "D"). In addition to the specious claims against Edwards relating to his alleged involvement in a Ponzi scheme, Epstein, in asserting his claims, primarily relied upon the pursuit by Edwards of testimony from his close friends and associates (See Second Amended Complaint, paragraph 32, pp. 11-13). Reliance on these assertions is also threaded through Epstein's Motion for Summary Judgment in his citation to the public documents referencing the pursuit of such discovery. But as set forth in detail in Edwards' Motion for Final Summary Judgment (Exhibit "B") at pages 14-16, that discovery was entirely appropriate and Epstein knew it. Specifically, as reflected in the statement of EFTA00597795 Case No.: 502009CA040800XXXXMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 6 of 15 undisputed facts submitted by Mr. Edwards in support of his Motion for Summary Judgment, Edwards had a sound legal basis for believing that Donald Trump, Allen Dershowitz, Bill Clinton, Tommy Mattola, David Copperfield and Governor Bill Richardson had relevant and discoverable information (Exhibit "A" — Edwards' Statement of Undisputed Facts, paragraphs 69-81). That belief was reinforced by the testimony of Exhibit "D" pp. 10-17, 21-23). Epstein's assertion of impropriety in the pursuit of this discovery clearly evidences his bad faith attempts to attribute wrongdoing to Edwards when he knew, in fact, that the pursuit of that discovery was entirely appropriate under the circumstances of this case. Finally, any attempt by Epstein to rely upon what he claims are undisputed facts to support his Motion for Summary Judgment arc undermined by his refusal to provide any testimony on the key issues and evidence which would demonstrate the validity and strength of each of the claims brought against him by Brad Edwards. Epstein's depositions of March 17, 2010 and January 25, 2012 were replete with refusals of Epstein to testify based upon his Fifth Amendment privilege. Questions that Epstein refused to answer in his depositions and the reasonable inferences that a fact finder would draw and which would otherwise bear on the arguments submitted by Epstein in support of his Motion for Summary Judgment are as follows: • Question not answered: "1 want to know whether you have any knowledge of evidence that Bradley Edwards personally ever participated in devising a plan through which were sold purported confidential assignments of a structured payout settlement?" Reasonable inference: No knowledge that Brad Edwards ever participated in the Ponzi scheme. • Question not answered: "Specifically what are the allegations against you which you contend Mr. Edwards ginned up?" Reasonable inference: No allegations against Epstein were ginned up. • Question not answered: "Well, which of Mr. Edwards' cases do you contend were fabricated?" Reasonable inference: No cases filed by Edwards against Epstein were fabricated. EFTA00597796 Case No.: 502009CA040800XXXXMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 7 of 15 • Question not answered: "Did sexual assaults ever take place on a private airplane on which you were a passenger?" Reasonable inference: Epstein was on a private airplane while sexual assaults were taking place. • Question not answered: "How many minors have you procured for prostitution?" Reasonable inference: Epstein has procured multiple minors for prostitution. • Question not answered: "Is there anything in L.M.jComplaint that was filed against you in September of 2008 which you contend to be false?" Reasonable inference: Nothing in L.M.I complaint filed in September of 2008 was false — i.e., as alleged in L.M.I complaint, Epstein repeatedly sexually assaulted her while she was a minor and she was entitled to substantial compensatory and punitive damages as a result. • Question not answered: "I would like to know whether you ever had any physical contact with the person referred to as Jane Doe in that [federal] complaint?" Reasonable inference: Epstein had physical contact with minor Jane Doe as alleged in her federal complaint. • Question not answered: "Did you ever have any physical contact with E.W.?" Reasonable inference: Epstein had physical contact with minor E.W. as alleged in her complaint. • Question not answered: "What is the actual value that you contend the claim of E.W. against you has?" Reasonable inference: E.W.1claim against Epstein had substantial actual value. (See Exhibit "A" — Edwards' Statement of Undisputed Material Facts, paragraphs 93-120 for page references.) A jury could conclude, therefore, from the adverse inferences drawn against Epstein that he was liable for the claims brought by Brad Edwards and that he had no basis for the pursuit of his efforts to intimidate and extort Edwards and his clients in the pursuit of those claims. The Litigation Privilege Does Not Bar the Claims of Abuse ofProcess and Malicious Prosecution Epstein contends he is entitled to absolute immunity pursuant to the litigation privilege as to both claims asserted by Edwards because all actions taken by him occurred during the litigation of his abuse of process claim against Edwards. For support, he relies primarily on the decision of Wolfe v. Foreman, 2013 WL 3724763 (Fla. 3d DCA July 17, 2013), wherein the Third District found that the litigation privilege barred both an abuse of process claim and a malicious prosecution cause of action. Wolfe is still EFTA00597797 Case No.: 502009CA040800XXXXMBAO Edwards' Opposition to Epstein's Motion for Summary Judgment Page 8 of 15 on rehearing and, thus, is not a final opinion. As a result, it is not binding, nor persuasive. Moreover, Wolfe undercuts the long-standing recognition of the viability of a claim for malicious prosecution in its own District and other Florida state and federal courts. See, SCI Funeral Svs. of Fla., Inc. v. Henry, 839 So. 2d 702, n.4 (Fla. 3d DCA 2002) ("As the Levin court cited Wright v. Yurko, 446 So. 2d 1162, 1165 (Fla. 5th DCA, 1984), with approval, presumably the cause of action for malicious prosecution continues to exist and would not be barred by the litigation privilege."); Boca Investors Group, Inc. v. Potash, 835 So. 2d 273, 275 (Fla. 3d DCA 2002) (Cope, J., concurring) (litigation privilege would not be a bar to a malicious prosecution action); North Star Capital Acquisitions, LLC v. Krig, 611 Fed. Supp. 2d 1324 (M.D. Fla. 2009) ("However, not every event bearing any relation to litigation is protected by the privileged because,... "if the litigation privilege applied to all actions preliminary to or during judicial proceedings, an abuse of process claim would never exist, nor would a claim for malicious prosecution"); Cruz v. Angelides, 574 So. 2d 278 (Fla. 3d DCA 1991)("the law is well settled that a witness in a judicial proceeding,... is absolutely immune from any civil liability, save perhaps malicious prosecution, for testimony or other sworn statements which he or she gives in the course of the subject proceeding."); Johnson v. Libow, 2012 WL 4068409 (Fla. 15th Jud. Cir. March 1, 2012)(the purpose of the litigation privilege does not preclude the tort of malicious prosecution). In Wright v. Yurko supra, the Fifth District Court of Appeal rejected the application of the litigation privilege to a malicious prosecution action brought by a physician against his patients and an expert after he successfully defended a malpractice claim. Also of significance is the Second opinion in Olson v. Johnson, 961 So. 2d 351 (Fla. 2d DCA 2007). In that case, the court observed that the litigation (or judicial) privilege would not apply to bar a malicious prosecution action which arose as a result of a false accusation of criminal liability where the prosecution was based, in part, on the testimony of the defendants in the criminal case. The court ruled that the privilege (either absolute or qualified) EFTA00597798 Case No.: 502009CA040800)0CXXMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 9 of IS which might otherwise apply to a defamation claim for statements made during the course of a judicial proceeding did not bar a malicious prosecution claim. In light of the implicit recognition by the Supreme Court in Levin that a claim of malicious prosecution is not barred by the litigation privilege — an implicit recognition acknowledged by the Third District itself — Epstein's reliance on Wolfe is misplaced. Wolfe is also factually distinguishable from Edwards' claims against Epstein. Wolfe involved a malicious prosecution action against attorneys. Separate policy considerations might serve to impose additional limitations on the assertion of malicious prosecution claims against attorneys — against whom alternative remedies exist such as bar disciplinary proceedings. See Taylor v. McNichols, 243 P.2d 642 (Idaho 2010). Moreover, in light of the decisions in Wright v. Yurko, supra and Olson v. Johnson, supra, the weight of authority supports the proposition that the litigation privilege would not apply to malicious prosecution claims. Both the Third and Fourth Districts have applied the litigation privilege to abuse of process claims. However, Wolfe itself, and the decisions of the Third and Fourth Districts cited in Wolfe, involved the litigation privilege as applied to claims of abuse of process by attorneys. None of the cases involved the extraordinary actions of an individual party like Epstein who carried out a course of action against Plaintiffs counsel with a singular purpose unrelated to any legitimate judicial goal. Under the compelling facts of this case, where the actions of Epstein are coupled with the elements of malice and absence of probable cause arising from the unfounded filing of the claims against Edwards, the litigation privilege should not have any applicability to the abuse of process claim asserted by Edwards. There are Disputed Issues of Fact Precluding Summary Judgment on the Abuse of Process Claim An abuse of process claim requires pleading and proof of the following three elements: 1) that the defendant made an illegal, improper or perverted use of process; 2) that the defendant had ulterior motives or purposes in exercising such illegal, improper, or perverted use of process; and 3) that, as a result of such action on the part of the defendant, the plaintiff suffered damage." See invs. v. Payless EFTA00597799 Case No.: 502009CA040800XXXXMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 10 of 15 Flea At, 36 So. 3d 909, 917 (Fla. 4th DCA 2010)(citation omitted). The case law is clear that on an abuse of process claim a "plaintiff must prove that the process was used for an immediate purpose other than that for which it was designed." Id. (citation omitted). Where the actions taken by a party in a particular lawsuit are designed to coerce another into taking some collateral action not properly involved in the proceeding a claim of abuse of process is stated. Miami Herald Publishing Company v. Ferre, 8636 F. Supp. 970 (M. Fla. 1985). In a case for abuse of process, the question of whether the case satisfies the requisite elements is largely a question for a jury. See Patrick John McGinley, 21 Fla. Prac., Elements of an Action § 50:1 (2013-2014 ed.)(citing Gatto v. Publix Supermarket, Inc., 387 So. 2d 377 (Fla. 3d DCA 1980)). The usual case of abuse of process involves some form of extortion. Scozari v. Barone, 546 So. 2d 750, 751(Fla. 3d DCA 1989) (citing Rothman v. Harrington, 458 So. 2d 1163, 1169 (Fla. 3d DCA 1984)). That is exactly what has transpired here. Epstein employed the extraordinary financial resources at his disposal to intimidate his molestation victims and Edwards into abandoning their legitimate claims or resolving those claims for substantially less than their just and reasonable value. Consequently, since Epstein's sole purpose and ulterior motive for filing the complaint without probable cause was in an effort to extort, to wit: to force his molestation victims and Edwards to settle for minimal amounts, that filing and everything subsequently done to pursue the claims constitutes an abuse of process. See Exhs. A at 18- 27, C at 4-7. Because Edwards has conclusively demonstrated that Epstein's actions in pursuing his claims were designed to coerce Edwards (and his client) to take some collateral action not properly involved in the proceedings and did so with an ulterior purpose, summary judgment directed at the abuse of process claim must fail. The damages suffered by Edwards include: (a) injury to his reputation; (b) mental anguish, embarrassment and anxiety; (c) fear physical injury to himself and members of his family; (d) the loss of the value of his time required to be diverted from his professional responsibility; and (e) the cost of defending against Epstein's spurious and baseless claims. All the elements of the EFTA00597800 Case No.: 502009CA040800XXXXMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 11 of 15 claim for abuse of process have been satisfied. This case, then, falls within the parameters of the Third Decision in Scozari v. Barone, supra in which the court reversed the entry of summary judgment for the defendant on claims of malicious prosecution and abuse of process. With respect to the abuse of process claim, the court stated that "if there was no reasonable basis in law and fact to bring the action to impress a lien on property, and this was done without any reasonable justification under law and to force or compel the appellant to resolve some custody dispute, induce the appellant to pay money, or tie up the property, then there has been an abuse of process." Id at 752. There are Disputed Issues of Fact Precluding Summary Judgment on the Claim of Malicious Prosecution Here, Epstein's voluntary dismissal of his abuse of process claims against Edwards amounted to a bona fide termination of the proceedings. He knew his allegations were unsupported by evidence (See discussion above at pages 3-6). Knowing he lacked any verifiable evidence against Edwards, on the eve of the summary judgment hearing, Epstein effectively conceded that fact by voluntarily dismissing his claims. Hence, it is evident that Epstein took voluntary dismissal of his claims because he knew he did not have probable cause or an evidentiary basis to support the allegations. See Cohen v. Corwin, 980 So. 2d 1153 at 1156 (citing Union Oil of California, Anna) Division v. Watson, 468 So. 2d 349 at 354 (stating that "where a dismissal is taken because of insufficiency of the evidence, the requirement of a favorable termination is met")). Accordingly, the manner of termination reflects on the merits of the case and there was a bona tide termination of Epstein's civil proceeding against Edwards (See Judge Order of March 29, 2012 denying Motion to Dismiss re: Issue of Bonafide Termination attached as Exhibit "H"). Epstein's only other issue with Edwards' counterclaim for malicious prosecution is that he did not lack probable cause in pursing his claims against Edwards. As established by the record, Epstein did, in fact, lack probable cause to assert his claims against Edwards (See discussion above). Epstein's purported EFTA00597801 Case No.: 502009CA040800XXXXMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 12 of 15 reliance on public filings, including the Scherer Complaint against Rothstein is unavailing. As discussed above, the evidence warrants the finding that Epstein knew that Edwards was legitimately pursuing the claims on behalf of his clients which included the effort to secure testimony from Epstein's close confidants. Therefore, Epstein cannot rely upon the referenced public documents to support his claims against Edwards given that he knows that information to be untrue and he refuses to answer questions about the veracity of the information. See Exh. G at pgs. 53:6-24; 78:16-24; 87:20-88:14. Consequently, Epstein had no good faith basis to rely on such information. Epstein's Assertion of his Fifth Amendment Privilege Gives Rise to Adverse Inferences Pertinent to His Motion for Summary Judgment and Precludes His Reliance on Purported Undisputed Facts As discussed above, Epstein's multiple invocations of his Fifth Amendment Privilege results in adverse inferences which directly impact the issues advanced in his Motion for Summary Judgment. "It is well settled that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them." Baxter v. Palmigiano, 425 M. 308, 318 (1976); Accord, Vasquez v. State, 777 So. 2d 1200, 1203 (Fla. at 2001). The reason for this rule "is both logical and utilitarian. A party may not trample upon the rights of others and then escape the consequences by invoking a constitutional privilege — at least not in a civil setting." Fraser v. Security and 1NV. Corp, 615 So. 2d. 841, 842 (Fla. 4th DCA 1993). The adverse inferences drawn from Epstein's assertion of the Fifth Amendment undercut his claim of justifiable reliance based upon the purported undisputed material facts to support his Motion for Summary Judgment. Moreover, because Epstein elected to hide behind the shield of his right against self-incrimination to preclude his disclosing any relevant information about the criminal activity at the center of his claims, he was effectively barred from prosecuting his abuse of process claim against Edwards. Similarly, Epstein should be barred from utilizing the Fifth Amendment privilege to secure summary judgment based upon assertions of fundamental facts when Epstein refused to testify on essential issues pertinent to the EFTA00597802 Case No.: 502009CA040800XVOCMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 13 of 15 arguments advanced in support of his Motion for Summary Judgment. Under the well-established "sword and shield" doctrine, Epstein could not seek damages from Edwards while at the same time asserting a Fifth Amendment privilege to block relevant discovery. See Exhs. B at 14-21, Cat 18-25, G at 53:6-24; 78:16-24; 87:20-88:14. The same policies which underlie the sword and shield doctrine as applied to the recovery of affirmative relief should also apply to attempts to advance positions with respect to a Motion for Summary Judgment which would have the effect of securing relief against certain claims. "[T]he law is well settled that a plaintiff is not entitled to both his silence and his lawsuit." Boys & Girls Clubs of Marion County, Inc. v. J.A., 22 So. 3d 855, 856 (Fla. 5th DCA 2009)(Griffin, J., concurring specially). Thus, "a person may not seek affirmative relief in a civil action and then invoke the fifth amendment to avoid giving discovery, using the fifth amendment as both a `sword and a shield.'" DePalma v. DePalma, 538 So. 2d 1290, 1290 (Fla. 4th DCA 1989)(quoting DeLisi v. Bankers Insurance Co., 436 So. 2d 1099 (Fla. 4th DCA 1983)). Put another way, "[a] civil fifth amendment right to avoid self-incrimination may be used as a shield but not a sword. This means that a plaintiff seeking affirmative relief in a civil action may not invoke the fifth amendment and refuse to comply with the discovery requests, thereby thwarting the defenses." Rollins Burdick Hunter of New York, Inc. v. Euroclassic Limited, Inc., 502 So. 2d 959 (Fla. 3d DCA 1983).. For the same reasons, Epstein should be precluded from advancing arguments based on purported statements of undisputed fact which cannot be effectively challenged in light of his assertion of the Fifth Amendment. Epstein has done precisely what well-established law prohibits. Conclusion Based upon the foregoing, the Defendant, Counter-Plaintiff, Bradley Edwards respectfully submits that Jeffrey Epstein's Motion for Summary Judgment must be denied. EFTA00597803 Case No.: 502009CA040800,OOC(MBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 14 of 15 I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve to all Counsel on the attached list, this i'7# day ofcim-v-g- r , 2014. WILLIAM B. KING /".— Florida Bar No.: Attorney E-Mail: and Primary E-Mail: Secondary E-Mail: Searcy Denney Scarola Barnhart & Shipley, PA. Phone: Fax: Attorney for Bradley J. Edwards EFTA00597804 Case No.: 502009CA04080C0OOOCMBAG Edwards' Opposition to Epstein's Motion for Summary Judgment Page 15 of 15 COUNSEL LIST Marc Nurik, uire Law Offices of Marc Nurik I Phone: Fax: Phone: Attorneys for Jeffrey Epstein Fax: Attorneys for Scott Rothstein Jack A. Goldberger, Esquire Tonja Haddad Coleman, Esquire Atterbury, Goldberger & Weiss, P.A. Tonia Haddad, P.A. Fax Fax: Attorneys for Jeffrey Epstein Fax: Bradley J. Edwards, Esquire Attorneys for Jeffrey Epstein Fanner, Jaffe, Weissing, Edwards, Fistos & Lehrman. FL Phone: Fax: Attorneys for Jeffrey Epstein Fred Haddad, Esquire Fred Haddad. P.A. EFTA00597805  IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No.:50 2009 CA 040800)OOOCMBAG JEFFREY EPSTEIN, Plaintiff, vs. SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, Defendants, STATEMENT OF UNDISPUTED FACTS Defendant Bradley J. Edwards, Esq., offers the following specific facts as the undisputed material facts in this case. Each of the following facts is numbered separately and individually to facilitate Epstein's required compliance with Fla. R. Civ. P. 1.510(c) ("The adverse party shall identify . . . any summary judgment evidence on which the adverse party relies."). All referenced exhibits and attachments have previously been filed with the Court and provided to Epstein. Sexual Abuse tf Children By Epstein 1. Defendant Epstein has a sexual preference for young children. Deposition of Jeffrey Epstein, Mar. 17, 2010, at 110 (hereinafter "Epstein Depo.") (Deposition Attachment #1).' When questioned about this subject at his deposition, Epstein invoked his Fifth Amendment right to remain silent rather than make an incriminating admission. Accordingly, Edwards is entitled to the adverse inference against Epstein that, had Epstein answered, the answer would have been unfavorable to him. "[I]t is well-settled that the Fifth Amendment does not • e d adverse inferences against parties to EXHIBIT EFTA00597806  2. Epstein repeatedly sexually assaulted more than forty (40) young girls on numerous occasions between 2002 and 2005 in his mansion in West Palm Beach, Florida. These sexual assaults included vaginal penetration. Epstein abused many of the girls dozens if not hundreds of times. Epstein Depo. at 109 ("Q: How many times have you engaged in oral sex with females under the age of 18?" A: [Invocation of the Fifth Amendment]); Deposition of Jane Doe, September 24, 2009 and continued March 11, 2010, at 527 (minor girl sexually abused at least 17 times by Epstein) (hereinafter "Jane Doe Depo") (Deposition Attachment #2); id. 564-67 (vaginal penetration by Epstein with his finger), 568 (vaginal penetration by Epstein with a massager); Deposition of L.M., September 24, 2009, at 73 (hereinafter "L.M. Depo") (Deposition Attachment #3) (describing the manner in which Epstein abused her beginning when LM was 13 years old, touching her vagina with his fingers and vibrator) at 74, line 12-13 (she was personally molested by Epstein more than 50 times), at 164, line 19-23 and 141, line 12-13 and 605, line 3-6 (describing that in addition to being personally molested by Epstein she was paid $200 per underage girl she brought Epstein and she brought him more than seventy (70) underage girls - she told him that she did not want to bring him any more girls and he insisted that she continue to bring him underage girls); Deposition of E.W., May 6, 2010 (hereinafter "E.W. Depo") (Deposition Attachment #4) at 115-116, 131 and 255 (describing Epstein's abuse of her beginning at age 14 when he paid her for touching her vagina, inserting his fingers and civil actions when the refuse to testify in response to probative evidence offered against them." Baxter v. Pahnigiano, 425 M. 308, 318 (1976); accord Vasquez v. State, 777 So.2d 1200, 1203 (Fla. App. 2001). The reason for this rule "is both logical and utilitarian. A party may not trample upon the rights of others and then escape the consequences by invoking a constitutional privilege — at least not in a civil setting." Fraser v. Security and Inv. Corp., 615 So.2d 841, 842 (Fla. App. 1993). 2 EFTA00597807 using a vibrator and he also paid her $200 for each other underage female E.W. brought him to molest. She brought him between 20 and 30 underage females); Deposition of Jane Doe #4, date (hereinafter "Jane Doe #4 Depo") (Deposition Attachment #5) at 32-34, and 136 (she describes first being taken to Epstein at 15 years old, "Being fingered by him, having him use a vibrator on [me], grabbing my nipples, smelling my butt, jerking off in front of me, licking my clit, several times."). 3. At all relevant times Edwards has had a good faith basis to conclude and did conclude2 that Epstein was able to access a large number of underage girls through a pyramid abuse scheme in which he paid underage victims $200-$300 cash for each other underage victim that she brought to him. See Palm Beach Police Incident Report at 87 (hereinafter "Incident Report") (Exhibit "A").3 The Palm Beach Police Incident Report details Epstein's scheme for molesting underage females. Among other things, the Incident Report outlines some of the experiences of other Epstein victims. When s a 14 year old minor at the time, was brought to Epstein's home, she was taken upstairs by a woman she believed to be Epstein's assistant. The woman started to fix up the room, putting covers on the massage table and bringing lotions out. The "assistant" then left the room and told M. that Epstein would be up in a second. Epstein walked over to and told her to take her clothes off in a stem voice. M. states in the report she did not know what to do, as she was the only one there. M. took off her shirt, leaving her bra on. Epstein, then in a towel told her to take off everything. M. removed her pants leaving 2 In support of all assertions concerning the actions Edwards took, what Edwards learned in the course of his representation of his clients, good faith beliefs and the foundation for those beliefs, see Edwards Affidavit and specifically paragraphs 25 and 25 of that Affidavit. 3 For clarity, depositions attached to this memorandum will be identified numerically as attachments #1, #2, #3, etc., while exhibits attached to this memorandum will be identified alphabetically as exhibits A, B, C, etc. 3 EFTA00597808 on her thong panties. Epstein then instructed to give him a massage. As gave Epstein a massage, Epstein turned around and masturbated. was so disgusted, she did not say anything; Epstein told her she "had a really hot body." Id. at 14. In the report, admitted seeing Jeffrey Epstein's penis and stated she thought Epstein was on steroids because he was a "really built guy and his wee wee was very tiny." Id. at 15. 4. The exact number of minor girls who Epstein assaulted is known only to Epstein. However, Edwards had a good faith basis to believe and did in fact believe that Epstein's victims were substantially more than forty (40) in number. In addition to the deposition excerpts from two of his many victims above about the number of underage girls brought to Epstein and the Palm Beach incident report, there is overwhelming proof that the number of underage girls molested by Epstein through his scheme was in the hundreds. See Complaint, Jane Doe 102 v. Epstein, (hereinafter Jane Doe 102 complaint) (Exhibit "B"); see also Deposition of Jeffrey Epstein, April 14, 2010, at 442, 443, and 444 (Epstein invoking the 5th on questions about his daily abuse and molestation of children) (Deposition Attachment #6). 5. At all relevant times Edwards has had a good faith basis to believe and did in fact believe that Epstein and his attorneys knew of the seriousness of the criminal investigation against him and corresponded constantly with the United States Office in an attempt to avoid the filing of numerous federal felony offenses, which effort was successful. See Correspondence from Office to Epstein (hereinafter Correspondence") (Composite Exhibit "C) (provided in discovery during the Jane Doe v. Epstein case). 4 EFTA00597809  6. At all relevant times Edwards has had a good faith basis to believe and did in fact believe that, more specifically, Epstein's attorneys knew of Epstein's scheme to recruit minors for sex and also knew that these minors had civil actions that they could bring against him. In fact, there was much communication between Epstein's attorneys and the United States Prosecutors in a joint attempt to minimize Epstein's civil exposure. For example, on October 3, 2007, Assistant •. Attorney Marie Villafafia sent an email (attached hereto as Exhibit "D") to Jay LeIkowitz, counsel for Epstein, with attached proposed letter to special master regarding handling numerous expected civil claims against Epstein. The letter reads in pertinent part, "The undersigned, as counsel for the United States of America and Jeffrey Epstein, jointly write to you to provide information relevant to your service as a Special Master in the selection of an attorney to represent several young women who may have civil damages claims against Mr. Epstein. The Office and the Federal Bureau of Investigation (jointly referred to as the "United States") have conducted an investigation of Jeffrey Epstein regarding his solicitation of minor females in Palm Beach County to engage in prostitution. Mr. Epstein, through his assistants, would recruit underage females to travel to his home in Palm Beach to engage in lewd conduct in exchange for money. Based upon the investigation, the United States has identified forty (40) young women who can be characterized as victims pursuant to 18 USC 2255. Some of those women went to Mr. Epstein's home only once, some went there as much as 100 times or more. Some of the conduct was limited to performing a topless or nude massage while Mr. Epstein masturbated himself. For other women, the conduct escalated to full sexual intercourse. As part of the resolution of the case, Epstein has agreed that he would not contest jurisdiction in the Southern District of Florida for any victim who chose to sue him for damages pursuant to 18 USC 2255. Mr. Epstein agreed to provide an attorney for victims who elected to proceed exclusively pursuant to that section, and agreed to waive any challenge to liability under that section up to an amount agreed to by the parties. The parties have agreed to submit the selection of an attorney to a Special Master...." 7. At all relevant times Edwards has had a good faith basis to believe and did in fact believe that L.M. was, in fact, a victim of Epstein's criminal abuse because L.M. was one of the 5 EFTA00597810 minor females that the United States Office recognized as a victim. L.M.' sworn deposition testimony and the adverse inference drawn from Epstein's refusal to testify confirm that Epstein began sexually assaulting L.M. when she was 13 years old and continued to molest her on more than fifty (50) occasions over three (3) years. Epstein Depo., Attachment #1, at 17 ("Q: Did you . . . ever engage in any sexual conduct with L.M.?" A: [Invocation of the Fifth Amendment].); see also Epstein Depo., April 14, 2010, Attachment #6, at 456 ("Q: LM was an underage female that you first abused when she was 13 years old; is that correct?" A: [Invocation of Fifth Amendment].) 8. Epstein was also given ample opportunity to explain why he engaged in sexual activity with L.M. beginning when L.M. was 13 years old and why he has molested minors on an everyday basis for years, and he invoked his 5th amendment right rather than provide explanation. See Epstein Deposition, February 17, 2010, at 11-12, 30-31 (Deposition Attachment # 7). 9. Epstein also sexually assaulted E.W., beginning when she was 14 years old and did so on numerous occasions. See E.W. Depo., Attachment #4 at 215-216. 10. Another of the minor girls Epstein sexually assaulted was Jane Doe; the abuse began when Jane Doe was 14 years old. Rather than incriminate himself, Epstein invoked the 5th amendment to questions about him digitally penetrating vagina, using vibrators on her vagina and masturbating and ejaculating in her presence. Epstein Depo., April 14, 2010, Attachment #6, at 420, 464, 468. 11. When clients L.M., E.W., and Jane Doe were 13 or 14 years old,