1417.pdf

NOT A CERTIFIED COPY Filing# 80632955 E-Filed 11/09/2018 04:12:00 PM JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, V. SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiff. _________________ ./ IN THE CIRCUIT COURT OF THE FIFTEENTH filDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 50-2009CA040800XXXXMBAG COUNTER-DEFENDANT JEFFREY EPSTEIN'S MOTION FOR AN IN CAMERA INSPECTION OF 30 E-MAILS Counter-Defendant, Jeffrey Epstein ("Epstein"), moves 1 this Court for an in camera inspection of 30 2 e-mails identified on Epstein's March 2, 2018 Clerk's Trial Exhibit List and to find that no privilege applies to them. These e-mails directly contradict Edwards' sworn testimony and repeated misrepresentations before this Court. Edwards, an officer of this Court, previously disclosed all of these e-mails to another adversary, thereby eliminating any privilege or work product protection that ever could have been applicable to them, and then improperly withheld them from discovery by Epstein and what appears to be a deliberate concealment of them in a non- compliant privilege log, previously ruled by the Court to be legally deficient, based on false claims 1 The original Motion was filed on March 5, 2018, but not ruled on before the March 9, 2018, appellate court stay. The parties further agreed to stay hearings on pending motions until mediation was completed. Additionally, The Honorable Donald W. Hafele's stated interest in first allowing the Show Cause proceedings before The Honorable Raymond B. Ray, United States Bankruptcy Court for the Southern District of Florida, to occur before this Court proceeded with this review. With trial approaching on December 4, 2018, this Court instructed Epstein to file this Motion and deliver the accompanying sealed Memorandum by November 9, 2018. Edwards was instructed to deliver a response sealed Memorandum by November 16, 2018. 2 Epstein has reduced the original 47 e-mails for in camera review down to 30 e-mails. FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 11/09/2018 04:12:00 PM NOT A CERTIFIED COPY of irrelevancy and attorney-client privilege and claims of work product that could no longer possibly be applicable under Florida law. 3 Following this Court's in camera review, Epstein seeks a ruling from this Court that these 30 e-mails must be unsealed and properly included on Epstein's Exhibit List. PREFACE The Bankruptcy Court, The Honorable Raymond B. Ray, entered an Order on October 29, 2018 (Exhibit 1), discharging the Order to Show Cause against Epstein in relation to the "disc" on which the e-mails were discovered. As of the time of this submission, Judge Ray has not yet determined whether Fowler White, Epstein's counsel at the time of the November 2010 Agreed Order (and from whom Link & Rockenbach, PA received the disc 4 ), violated the Agreed Order. Edwards is hoping that this Court will refuse to conduct an in camera inspection because of a possible finding by Judge Ray that Fowler White negligently or inadvertently held the disc in its storage facility for some number of years. Even if Judge Ray makes such a determination, this Court should not excuse Edwards' (and Farmer Jaffe's) failure to produce all of these e-mails as they were required to do and represented they would in 2011. Importantly, this Court has found that Link & Rockenbach, PA did nothing wrong relating to its discovery and use of the disc: 3 Farmer Jaffe agreed to produce all work-product related to closed cases to Epstein's attorneys. 4 At the bankruptcy hearing and for the first time, Epstein's counsel learned from Lilly Sanchez's testimony that Fowler White was given two discs from the Farmer Jaffe firm to create two sets of hard copy documents that were bate stamped. This uncontroverted testimony demonstrated that the "disc" was created for Special Master Camey and not for Fowler White or Epstein. The disc was made because, according to Lilly Sanchez, Special Master Camey did not want 27,542 bate stamped pages of documents. Rather, Special Master Camey wanted a searchable disc. It is still a mystery how and when the disc came back into Fowler White's possession after it was sent to Special Master Camey and no evidence has been presented to resolve that question definitively. 2 NOT A CERTIFIED COPY • "I'm not finding fault with anything you or Miss Rockenbach or Miss Campbell did. That's not the issue. You've done your job." (March 8, 2018, Aft. Tr. 59:1-4.) 5 • "So I again want to make clear that I'm finding absolutely no fault with Mr. Link, Miss Rockenbach, Miss Campbell or anyone else from the Link and Rockenbach firm in terms of what they did, albeit in the manner in which they had to do it and the timing, unfortunately, of the matter from their perspective in having to do it " (March 8, 2018, Aft. Tr. 61:15-21.) IN CAMERA REVIEW Epstein requests that the 30 e-mails remain unsealed for the duration of the in camera inspection and counsel for both parties be allowed to review and present argument as to each e- mail. This is the same protocol agreed to by Farmer Jaffe in 2011 when the Special Master was contemplating this same review. That is, Farmer Jaffe agreed to turn over work product materials except for materials related to new or ongoing cases conditioned on a "For Attorneys' Eyes Only" basis until such time as the Court overruled any privilege claim upon the Special Master's ( or Court's) review with counsel present. (See Exhibit 3.) During its in camera review, this Court must consider and determine: 1. The e-mails are directly relevant to the issues for trial and no Binger 6 "surprise in fact" exists regarding them; 2. If any work product protection existed, it was waived or excepted based on: a. Farmer Jaffe's express agreement to turn over all work product to Epstein's attorneys; b. Edwards' production to Razorback victims/adversaries; c. Edwards' issue injection; and d. Crime fraud exception; 3. The e-mails do not constitute attorney-client communications. 5 Excerpts of the March 8, 2018, afternoon hearing transcript are attached s Exhibit 2. 6 Bingerv. King Pest Control, 401 So. 2d 1310 (Fla. 1981). 3 NOT A CERTIFIED COPY BACKGROUND A. Discovery of Deliberately Concealed E-Mails As this Court is well aware, in February 2018, Link & Rockenbach, PA discovered documents that were voluntarily produced years ago by Edwards to his potential adversaries at the time - the Razorback plaintiffs. These e-mails directly contradict Edwards' sworn testimony and positions taken by Edwards in this action. Importantly, the e-mails eviscerate Edwards' claim for emotional distress damages, and worse - they illustrate that Edwards provided suspect testimony in this action about his anxiety over being sued by Epstein. They also directly contradict Edwards' sworn testimony regarding interaction with Ponzi-schemer Scott Rothstein ("Rothstein") and the strength/weakness of Edwards' clients' damage claims against Epstein, both which have become critical factual issues in this case. First and foremost, the e-mails have become highly relevant in light of Edwards' sworn testimony that Epstein's lawsuit has caused him daily anxiety (emotional damages and credibility). Next, the e-mails are direct evidence controverting factual claims made by Edwards that he argues disproves probable cause, such as his interaction with Rothstein on the Epstein cases and the known "weakness" of the tort claimants' damages. While the e-mails only became known to Epstein's current counsel earlier this year, Edwards has known of them from the time of their existence! Moreover, the e-mails were produced by Edwards approximately eight years ago to counsel for Razorback, Edwards' adversary at the time. Edwards, knowing how potentially damaging thee- mails are