EFTA00728258.pdf

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA JEFFREY EPSTEIN Complex Litigation, Fla. R. Civ. Pro.1201 Plaintiff, Case No. 50 2009CA040800XXXXMB AG v. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and M., individually, Defendants. Motion to Compel Bradley Edwards To Appear For Follow-Up Deposition Plaintiff, JEFFREY EPSTEIN (hereinafter "EPSTEIN"), by and through his undersigned attorneys, files this Motion to Compel Defendant, BRADLEY J. EDWARDS, for follow-up deposition. Accordingly, EPSTEIN states: I. Introduction As this court is aware, attorney Scott Rothstein aided by other lawyers and employees at the firm of Rothstein, Rosenfeldt, and Adler, P.A. for personal greed and enrichment, in betrayal of the ethical, legal and fiduciary duties to their own clients and professional obligations to the administration of justice, deliberately engaged in a pattern of racketeering that involved a staggering series of gravely serious obstructions of justice, actionable frauds, and the orchestration and conducting of egregious civil litigation abuses that resulted in profoundly serious injury to Jeffrey Epstein one of several targets of their misconduct and others. Rothstein and RRA's fraud had no boundary; Rothstein and his co-conspirators forged Federal court orders and opinions. Amongst the violations of law that are the subject of this lawsuit are the marketing of non-existent Epstein settlements and the sanctioning of a series of depositions that were EFTA00728258 Epstein v. Rothstein, et al. Page 2 unrelated to any principled litigation purpose but instead designed to discover extraneous private information about Epstein or his personal and business associates (including well-known public figures) in order to defraud investors and support extortionate demands for payment from Epstein. Edwards, formerly of RRA, represents three (3) of the alleged Jane Does. The misconduct featured the filing of legal motions and the pursuit of a civil litigation strategy that was unrelated to the merits or value of their clients' cases and, instead, had as its improper purpose the furthering of Rothstein's misrepresentations and deceit to third party investors. As a result, Epstein was subject to abusive investigatory tactics, unprincipled media attacks, and unsupportable legal filings, some of which Edwards either knew about and/or participated in as the attorney for the Jane does. II. Motion to Compel I. On March 23, 2010, the undersigned took the deposition of Edwards. It is believed that Edwards is either a major player in the Rothstein/RRA scam or a partner of that firm who knew or should have known that Rothstein was scrupulously marketing alleged Epstein settlements based upon the lawsuits filed by three (3) Jane Does (Le., Jane Doe, LM and EW). Jane Doe is filed in the Southern District of Florida, and LM and EW are both filed in the Circuit Court in and for Palm Beach county, Florida. Notably, Edwards represented Jane Doe, LM and EW well before he accepted his gainful employment with RRA and continues to represent them today. (a) The Costs Incurred By RRA and The Financial Arrangement Between RRA and Edwards 2. Based upon the allegations of fraud as set forth in the Complaint, it is imperative that Epstein know the financial arrangement between Edwards and RRA relative to the three (3) EFTA00728259 Epstein v. Rothstein, et al. Page 3 Jane Doe cases Edwards brought from his small private practice ("Brad Edwards P.A.") to RRA, which Rothstein feverishly marketed as part of his ponzi scheme. Epstein is entitled to know if Mr. Edwards ever received any bonus monies for bringing over the three Jane Doe cases and the exact amount of costs incurred by RRA and Brad Edwards P.A., and which RRA apparently agreed to reimburse Mr. Edwards for after becoming a partner with RRA. Moreover, as set forth infra, despite Edwards deposition testimony, Epstein has now learned that Edwards had five (5) Epstein related cases, not three (3) as he testified. Accordingly, Epstein is entitled to learn any financial arrangement relative to those cases including, but not limited to, whether Edwards' salary was structured in a manner to bonus him for transitioning the Jane Doe cases over to RRA. 3. For instance, at his deposition, Edwards testified that there were only three (3) cases brought from Brad Edwards P.A. to RRA. See Exhibit "A," Edwards' deposition at pp. 12-13, 92, 158-59, & 152-153. Moreover, he appeared to be unsure as to what "costs" meant, but later testified that the costs involved in litigating the three (3) cases totaled between $300,000 and $500,000 dollars. Exhibit "A" at pp. 158-59, 75-177 & 196. 4. Since Edwards' deposition, Epstein learned that Edwards had five (5) Epstein related cases while at RRA. Epstein learned this information by way of an agreement entered into between the Bankruptcy Trustee for RRA and Edwards' current law firm, which agreement identifies each of the five (5) Epstein related matters by the figure - "5%." (the "Agreement"). Sit Exhibit "B." Moreover, it appears from the Agreement that Edwards and his current law firm have agreed to reimburse the Trustee for costs and expenses incurred in litigating each of the Epstein matters (i.e., all five), which means that Edwards must now know the exact amount of costs incurred in litigating the five (5) cases by virtue of having entered into the Agreement. EFTA00728260 Epstein v. Rothstein, et al. Page 4 Id. Since the costs and the number of Epstein related cases go to the heart of this litigation, Plaintiff is entitled to depose Edwards on those newly found and relevant topics. Certainly, based upon his deposition testimony (or lack thereof) regarding the number of Epstein related cases he was involved in while at RRA, Epstein is entitled inquiry into same. These inquiries go to the heart of Epstein's damages claim. 5. Likewise, Epstein is entitled to know whether Edwards ever received any form of compensation for transitioning the other two (2) cases he failed to address at his recent deposition including, but not limited to, whether the salary he agreed to accept had any assort of monetary component related to the Epstein cases and which Edwards attorney objected to on the grounds of "economic privacy." Exhibit "A" at pp. 72-74. Defendant's objections should be overruled in this regard. See Lg., Friedman v. Heart Institute of Port. St. Lucie, Inc., 863 So.2d 189, 194-194 (Fla. 2003)(disclosure of financial information can only cause irreparable harm in a case in which the information is not relevant). [W]here materials sought by a party would appear to be relevant to the subject matter of the pending action, the information is fully discoverable." Id. at 194. See also Epstein v. Epstein, 519 So.2d 1042 (Fla. 3d DCA 1988). The financial information sought here is clearly relevant. (b) Topic Specific Objections As to Michael Fisten Should Be Overruled and Edwards Should be Compelled To Return For Deposition to Testify to Same and to His Newly Filed Affidavit 6. Michael Fisten was an investigator working for RRA, and is currently believed to be employed by Edwards' current firm. Exhibit "A," pp. 110-111, 128-129. 7. The undersigned asked Mr. Edwards to discuss certain information related to the Epstein investigation, which was met with several work-product objections by Edwards' counsel. EFTA00728261 Epstein v. Rothstein. et al. Page 5 See Exhibit "A" at pp. 169-171, 185-186. Edwards counsel made clear that Edwards would not answer "any questions" related to the alleged investigation done by Fisten and other investigators. Therefore, it was clear that despite the fact that Mr. Edwards and Mr. Fisten discussed Epstein and the Jane Doe matters with George Rush of the NY Daily News regarding the Epstein matter, he would not be answering any questions regarding what Fisten specifically discussed with Mr. Rush because that was work-product. However, subsequent to Edwards' deposition, Michael Fisten filed the Affidavit attached hereto as Exhibit "C". According, to the extent any privilege attached to the topics outlined in Mr. Fisten's Affidavit, same no longer exists as the affidavit is now being used for testimonial purposes. Kailas v. Carnival Corporation, 2008 WL 2222152 at *4-6 (S.D. Fla. 2008); Montana Land and Mineral Owners Assoc., Inc. v. Devon Energy Corporation, 2006 WL 1876859 (D. Mont. 2006)(use of affidavits for testimonial purposes waives work-product). Accordingly, Mr. Edwards should be compelled to return for deposition to discuss the Mr. Fisten's Affidavit and the topics outlined therein, and any objections as to work-product relative to Michael Fisten as it pertains to his involvement with George Rush should be waived and Edwards should be compelled to testify to same. 8. Likewise, Edwards should be compelled to return to deposition to testify, under oath, as to the information set out in his Affidavit attached hereto as Exhibit "D". No privilege can attach to a publicly filed document, and Mr. Edwards did not fully recall at deposition the information that was later delineated in his Affidavit. Exhibit "A" at pp. 134-146 and 151-154. Accordingly, a more detailed inquiry is required for those same reasons set out above. III.The Legal Standard 9. In sum, nothing in the Florida Rules of Civil Procedure forbids a second EFTA00728262 Epstein v. Rothstein. et at Page 6 discovery deposition. Medina v. Yoder Auto Sales. Inc., 743 So.2d 621, 622-623 (Fla. 2d DCA 1999) and Fla. R. Civ. Pro. 1.280. 10. As defined by §90.401, Fla.Evid.Code, "relevant evidence is evidence tending to prove or disprove a material fact." "Relevancy describes evidence that has a legitimate tendency to prove or disprove a given proposition that is material as shown by the pleadings. [It is] a tendency to establish a fact in controversy or render a proposition more or less probable." Zabner v. Howard Johnson's, Inc. of Fla., 227 So.2d 543, 545 (Fla. 4th DCA 1969). It is equally well settled that "the concept of relevancy is broader in the discovery context than in the trial context" and a party may be permitted to discovery relevant evidence that would be inadmissible at trial, so long as it is reasonably calculated to lead to the discovery of admissible evidence. Rule 1.280(b), Fla.R.Civ.P. (2008). Wherefore, Epstein requests that this court grant the relief requested herein, including, but not limited to, ordering that Edwards return for a second deposition, waiving the objections asserted by his counsel as identified above, and requiring him to testify to the subject matter outlined herein, and for any additional and further relief as the court deems just and proper. Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing was sent by fax and U.S. Mail to the following addressees on this day of , 2010: MARC S. NURIK, ESQ. Gary M. Farmer, Jr., Esq. Law Offices of Marc S. Nurik Farmer, Jaffe, Weissing, Edwards, Fistos & One East Broward Boulevard Lehrman, PL Suite 700 425 N. Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Fort Lauderdale, FL 33301 EFTA00728263 Epstein v. Rothstein. et at Page 7 Fax M- Fax Attorneysfor Defendant Scott Rothstein Attorneysfor Defendant, L.M. Jack Scarola, Esq. Searcy Denney Scarola Barnhart & Shipley, Jack Alan Goldberger, Esq. P.A Atterbury Goldberger & Weiss, P.A. 2139 Palm Beach Lakes Blvd. 250 Australian Avenue South West Palm Beach, FL 33409 Suite 1400 West Palm Beach FL 33401-5012 F Fax ttorneysfor Defendant Bradley Edwards Co-Counselfor Defendant Jeffrey Epstein BURMAN, CRITTON, LUTTIER & COLEMAN, LLP 303 Banyan Boulevard Suite 400 West Palm Beach, FL 33401 Fax By: Robert D. Critton, Jr. Florida Bar #224162 Michael J. Pike Florida Bar #617296 (Counselfor Defendant Jeffrey Epstein) EFTA00728264