EFTA00808120.pdf

Case 09-34791-RBR Doc 6487 Filed 10/22/18 Page 1 of 12 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION www.flsb.uscourts.gov IN RE: CASE NO.: 09-34791-RBR ROTHSTEIN ROSENFELDT ADLER, P.A., CHAPTER 11 Debtor. BRADLEY EDWARDS' RESPONSE IN OPPOSITION TO JEFFREY EPSTEIN'S EXPEDITED MOTION TO BE EXCUSED FROM ATTENDING SHOW CAUSE HEARING AND SUPPLEMENT THERETO Bradley J. Edwards ("Edwards"), by and through undersigned counsel, hereby files this Response in Opposition to Jeffrey Epstein's Expedited Motion to Be Excused From Attending Show Cause Hearing and Supplement Thereto, which has been set for hearing on October 23, 2018 and states as follows: The Disc Did Not Sit in a Box Contrary to what has been repeatedly stated by Jeffrey Epstein ("Epstein") and Fowler White, the disc that Fowler White retained in violation of this Court's November 30, 2010 Agreed Order did not "sit in a box" for the past eight (8) years. This fact, however, was only uncovered at the October 19, 2018 deposition duces tecum of Fowler White's corporate representative, which was conducted after Epstein's deposition on October 13, 2018. Thus, the Court should not excuse Epstein from attending the upcoming Show Cause hearing because Edwards is entitled to cross- examine Epstein on the recent discovery that not only did the disc not "sit in a box" but Fowler White printed at least 32 pages of materials from the disc (26 of which are listed in Edwards' privilege log) and made handwritten notations on at least one (1) of the pages. 1 EFTA00808120  Case 09-34791-RBR Doc 6487 Filed 10/22/18 Page 2 of 12 Attached as Exhibit 'W I to the Fowler White deposition transcript is a composite of 32 documents that were printed off the disc that is the subject of these contempt proceedings. The printed documents were contained in a folder labeled `J. Carney - Printing of CD Issue -.' Twenty- six (26) of the emails are listed on Edwards' privilege log. The folder itself was logged on an inventory from 2014, which Fowler White apparently created when it transferred the Epstein case files to storage. And, tellingly, at least one (1) email contains handwritten notations, indicating that not only did Fowler White take the "disc out of the box" and print certain privileged materials, but it analyzed those materials in derogation of this Court's November 30, 2010 Agreed Order. What is unknown at this point is whether Epstein was aware that his attorneys not only retained, but were in fact apparently utilizing, the disc and materials that are the subject of the November 30, 2011 Agreed Order. Did Epstein receive copies of these materials? Did he instruct Fowler White to print the documents? What role, if any, did he play in what is the clear violation of this Court's Order? Those questions are but a few that Edwards is clearly entitled to cross- examine Epstein on at the upcoming Show Cause hearing, as he seeks to meet the high burden of clear and convincing evidence to hold Epstein in contempt.2 For these reasons, the Court should deny Epstein's Expedited Motion to Be Excused. In addition, Epstein was instructed not to answer a litany of questions at his October 13, 2018 deposition, and Edwards is entitled to re-ask those questions on cross-examination and to have the Court determine the validity of any such instruction. For example, Epstein testified during his deposition that his personal attorney, Darren Indyke, handed him somewhere between 3 and 100 documents that were obtained from the Fowler White disc at issue. ate Epstein Dep. Tr. at I Per the agreement of the parties, this exhibit is attached under seal. 2 Edwards' recitation of these prospective sampling of these questions is made with filll reservations of his work- product privilege, and any further requirement that Edwards establish a predicate to form the basis to support his position that Epstein appear at the Show Cause hearing would violate Edward' work-product privilege and be equivalent to requiring Edwards to divulge his trial strategy in advance of Friday's hearing. 2 EFTA00808121  Case 09-34791-RBR Doc 6487 Filed 10/22/18 Page 3 of 12 29:1-24 (number of documents); 33:8-9 (received from Mr. Indyke)3. Epstein, however, was instructed not to answer the following question based on the assertion of the attorney-client privilege: (MR. SCAROLA) Q: Were you told at the time that Mr. Indyke gave you the less than 100 pages that he said were contained on the disc, that an allegation was made that any of those documents were privileged? (MR. LINK): So if you can answer that general questions because the source of information was from somebody other than Mr. Indyke and/or your lawyers, then you can answer it. (EPSTEIN) A: I cannot answer it separate from that. Q: Did your lawyers, including Mr. Indyke, tell you when they handed over those pages to you that there's an allegation that these pages contain privileged materials? (MR. LINK): I am going to instruct you not to answer it. Epstein Dep. Tr. at 54:24-55:21. The instruction not to answer is improper. Edwards has the burden to establish, by clear and convincing evidence, that Epstein violated the Court's November 30, 2010 Agreed Order. That Agreed Order prohibits Epstein from "retain[ing] images or copies of the subject document on its computer or otherwise." If Epstein was given copies of documents and was told that those documents were listed on Edwards' privilege log, it follows that Epstein was also told about this Court's November 30, 2011 Agreed Order at the time he was given the copies of the documents by Mr. Indyke.4 At that point, Epstein would be in willful violation of the Court's Agreed Order if he retained these documents and would have been obliged to order his attorneys and agents, Link & Rockenbach, to destroy the subject documents to ensure that Epstein was in compliance with 3 A copy of the referenced excerpts of Epstein's October 13, 2018 deposition transcript is attached hereto as Exhibit 'A'. 4 This is yet another example of a question that needs to be asked of Epstein during the Show Cause hearing. 3 EFTA00808122  Case 09-34791-RBR Doc 6487 Filed 10/22/18 Page 4 of 12 this Court's Agreed Order. Again, this is but one example of questions which Epstein refused to answer and to which Edwards is entitled to re-ask at the Show Cause hearing so that the Court can rule on the propriety of the objection and instruction. Conclusion For the forgoing reasons, Edwards respectfully requests that the Court deny Epstein's Expedited Motion. I HEREBY CERTIFY that, pursuant to L.R. 9011-4(B) the undersigned counsel is qualified to practice before this Court. I HEREY CERTIFY that a true and correct copy of the foregoing was served on electronically to the examinee, the debtor, the attorney for the debtor, the trustee, all CMIECF subscribers, and by email or U.S. Mail on those parties listed on the attached service list this 26th day of September, 2018. I HEREBY CERTIFY that I am admitted to the Bar of the United States District Court for the Southern District of Florida and I am in compliance with the additional qualifications to practice in this court set forth in Local Rule 2090-1(A). /s/ David P. Vitale Jr. Jack Scarola Florida Bar No.: 169440 David P. Vitale, Jr. Florida Bar No.: 115179 Attorney E-Mails: jsx@searcylaw.com; and mmccann@searcylaw.com Primary E-Mail: _scarolateam@searcylaw.com Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Phone: (561) 686-6300 Attorneys for Bradley J. Edwards 4 EFTA00808123  Case 09-34791-RBR Doc 6487 Filed 10/22/18 Page 5 of 12 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 22, 2018, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certified that the foregoing document is being served this day on all counsel of record or pro se parties identified on the on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. /s/ David P. Vitale Jr. DAVID P. VITALE JR. Florida Bar No.: 115179 Primary E-Mail: _scarolateam@searcylaw.com Searcy Denney Scarola Barnhart & Shipley, P.A. 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Phone: (561) 686-6300 Fax: 561-383-9451 Attorneys for Bradley J. Edwards 5 EFTA00808124  Case 09-34791-RBR Doc 6487 Filed 10/22/18 Page 6 of 12 SERVICE LIST Joseph L. Ackerman, Jr., Esq. Fowler White Burnett, P.A. 901 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401-6170 Phone: (561) 802-9044 Fax: (561) 802-9976 Scott J. Link, Esq. Link & Rockenbach, P.A. Scott@linkrocklaw.com ICara@linkrocklaw.com 1555 Palm Beach Lakes Boulevard Suite 301 West Palm Beach, FL 33401 Phone: 561-727-3600 Fax: 561-727-3601 Attorneys for Jeffrey Epstein Jack A. Goldberger, Esquire jgoldberger@agvvpa.com; smahoney@agwpa.com Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue S, Suite 1400 West Palm Beach, FL 33401 Phone: (561)-659-8300 Fax: (561)-835-8691 Attorneys for Jeffrey Epstein Phil Burlington, Esq. Nichole J. Segal, Esquire njs@FLAppellateLaw.com; kbt@FLAppellateLaw.com Burlington & Rockenbach, P.A. 444 W Railroad Avenue, Suite 350 West Palm Beach, FL 33401 Phone: (561)-721-0400 Attorneys for Bradley J. Edwards EDWARDS POTTINGER LLC Bradley J. Edwards FLBN 54207 Brittany N. Henderson FLBN 118247 Edwards Pottinger LLC 425 N Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Phone: (954)-524-2820 EFTA00808125  Case 09-34791-RBR Doc 6487 Filed 10/22/18 Page 7 of 12 Fax: (954)-524-2822 Attorneys for Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. Jay Howell Jay Howell & Associates Florida Bar No.: 225657 Attorney E-Mail(s): jay@jayhowell.com 644 Cesery Blvd. #250 Jacksonville, FL 32211 (904) 680-1234 Paul G. Cassell S.J. Quinney College of Law at the University of Utah 332 S. University St. Salt Lake City, UT 84112 (above for address purposes only) Attorney E-Mail: cassellp@law.utah.edu Attorneys for L.M., E.W., and Jane Doe EFTA00808126  Case 09-34791-RBR Doc 6487 Filed 10/22/18 Page 8 of 12 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 502009CA040800XXXXMB JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, vs. SCOTT ROTHSTEIN, individually; BRADLEY EDWARDS, individually, Defendants/Counter-Plaintiffs. VIDEOTAPED DEPOSITION OF JEFFREY EPSTEIN Saturday, October 13th, 2018 9:07 a.m. - 11:00 a.m. 1555 Palm Beach Lakes Boulevard, #930 West Palm Beach, Florida 33401 Examination of the witness taken before Sonja D. Hall Palm Beach Reporting Service, Inc. 1665 Palm Beach Lakes Boulevard, Suite 1001 West Palm Beach, FL 33401 EXHIBIT (561) 471-2995 Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00808127  Case 09-34791-RBR Doc 6487 Filed 10/22/18 Page 9 of 12 29 1 BY MR. SCAROLA: 2 Q Can you characterize in any way the volume of 3 documents that you received that you understood 4 originated on the disc? 5 A I don't recall. 6 Q Was it more than one? 7 A Probably. 8 Q Was it more than two? 9 A Probably. 10 Q Was it more than three? 11 A I don't know what you mean by documents. Are 12 you talking about pages? 13 Q Yes. Let's be very specific. 14 Did you receive more than three pages that 15 you understood to have been printed out from the 16 disc? 17 MR. LINK: Let me think about the 18 question for a minute. 19 You can answer that question. 20 THE WITNESS: Yes. 21 BY MR. SCAROLA: 22 Q Was it more than 10? 23 A I would say less than 100, so we don't have 24 to go through numbers. 25 Q That does indeed save us some time. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00808128  Case 09-34791-RBR Doc 6487 Filed 10/22/18 Page 10 of 12 33 1 question. 2 THE WITNESS: Sometime in February I 3 was handed, from my attorneys, some 4 documents. Is what I recall. Some 5 documents from my attorneys. I was handed 6 some documents. 7 BY MR. SCAROLA: 8 Q Who specifically handed you those documents? 9 A Darren Indyke. 10 Q Where were you? 11 A I believe in New York. I can't be certain. 12 Q How many pages did Mr. Indyke hand you on 13 that occasion? 14 A Less than 100. 15 Q Were those pages accompanied by any cover 16 letter? 17 A Not that I recall. 18 Q Were they accompanied by any summary of the 19 contents? 20 A Not that I recall. 21 Q Were they accompanied by any index? 22 A Not that I recall. 23 Q What did Mr. Indyke tell you about the 24 documents when he gave him to you? 25 MR. LINK: I'm going to instruct you Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00808129  Case 09-34791-RBR Doc 6487 Filed 10/22/18 Page 11 of 12 54 1 discuss with you what I think the impediment 2 is to these general questions, because there 3 were alleged privileged emails that were 4 produced in the litigation -- before my law 5 firm was retained -- voluntarily by 6 Mr. Edwards and his law firm, so that there 7 had been in the record alleged privileged 8 emails for years in this case. And you have 9 not asked specific questions about the 10 emails that were located by my law firm in 11 February as to your questions. 12 So I think your general questions about 13 alleged privileged emails is not encompassed 14 in what the court has asked or what we are 15 here to talk about. And it's creating 16 confusion, because there were many alleged 17 privileged emails produced years ago. 18 BY MR. SCAROLA: 19 Q Did Mr. Link tell you the things that he just 20 stated on the record at some time prior to today? 21 MR. LINK: You are not going to answer 22 that question, Mr. Epstein. 23 BY MR. SCAROLA: 24 Q Were you told at the time that Mr. Indyke 25 gave you the less than 100 pages that he said were Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00808130  Case 09-34791-RBR Doc 6487 Filed 10/22/18 Page 12 of 12 55 1 contained on the disc, that an allegation was made that 2 any of those pages were privileged? 3 THE WITNESS: Can you repeat the 4 question for me, please? 5 (Thereupon, the requested portion of the 6 record was read back by the reporter as 7 above duly recorded.) 8 MR. LINK: So if you can answer that 9 general question because the source of 10 information was from somebody other than 11 Mr. Indyke and or your lawyers, then you can 12 answer it. 13 THE WITNESS: I cannot answer it 14 separate from that. 15 BY MR. SCAROLA: 16 Did your lawyers, including Mr. Indyke, tell Q 17 you when they handed over those pages to you that 18 there's an allegation that these pages contain 19 privileged material? 20 MR. LINK: I am going to instruct you 21 not to answer it. 22 Do you mind if we take a break? 23 THE VIDEOGRAPHER: Going off the record 24 at 10:15 a.m. 25 (A recess was had.) Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00808131