EFTA01103276.pdf

IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CIVIL DIVISION CASE NO. 502009CA040800XXXXMBAG Judge David F. Crow JEFFREY EPSTEIN, Plaintiff, v. SCOTT ROTHSTEIN, individually and BRADLEY J. EDWARDS, individually, Defendants. PLAINTIFF'S MOTION TO OUASH SUBPOENA AND FOR PROTECTIVE ORDER TO PREVENT DEPOSITION OF ALFRED SECKEL Plaintiff Jeffrey Epstein moves the Court, pursuant to Rule 1.280 and Rule 1.410, Florida Rules of Civil Procedure, for entry of a protective order and an order quashing a subpoena commanding non-party Alfred Seckel to appear for deposition in Los Angeles, California on May 23, 2011, which subpoena Defendant Bradley J. Edwards ("Edwards") has noticed over the Plaintiffs objection. The grounds for this Motion are: 1. On or about April 7, 2011, counsel to Edwards noticed the deposition of Mr. Seckel, despite the fact that counsel to Edwards was advised by Plaintiffs counsel that Mr. Seckel has no knowledge of any issue in this case and is barely known to the Plaintiff at all. A copy of the Notice and Subpoena is attached as Exhibit A. 2. The Plaintiff seeks an order quashing the subpoena and entry of a protective order to prevent the taking of this deposition indefinitely because Mr. Seckel has no relevant information about this case and to allow the deposition would effectively condone harassment. FOWLER WHITE BURNETT P.A. • 901 PHILLIPS POINT WEST, 777 SOUTH FLAOLER DRIVE, WEST PALM BEACH, FLORIDA 33401 EFTA01103276  Epstein v Rothstein, Edwards CASE NO. 502009CA040800XXXXMBAG Epstein's M/Quask or MPO — Depo Alfred Seckel 3. The Plaintiff became acquainted with Mr. Seckel approximately eighteen (18) months ago in the fall of 2009. At that time, the Plaintiff had already pled guilty, completed his prison sentence and was on community control. The Plaintiff and Mr. Seckel share a common interest in cognitive neuroscience and the science of perception. Mr. Seckel is believed to be one of the world's leading experts in the field of visual and other types of sensory illusions, has authored many books and articles related to the science of visual perception. The Plaintiff has met with Mr. Seckel on approximately three (3) occasions and otherwise communicated with him on less than ten (10) occasions regarding to this shared scientific interest. 4. Accordingly, Mr. Seckel has no information relevant to any issue in this case nor does he possess any information likely to lead to the discovery of admissible evidence in this case. 5. The taking of Mr. Seekers deposition, without Edwards first making a showing that Mr. Seckel does, in fact, have relevant information material to this case or that is likely to lead to admissible evidence, would allow defendant Edwards to use the rules of discovery as a litigation tactic rather than to obtain admissible evidence. 6. Moreover, the taking of this deposition would amount to the harassment of a disinterested non-party for the seemingly sole purpose of harassing and embarrassing the Plaintiff. 7. A deposition without some explanation of what the witness allegedly knows — not based on rumor or a secret source -- will simply waste the time and resources of all concerned. Legal Argument 8. Discovery in Florida civil cases is permitted only as to matters which are relevant or which are reasonably calculated to lead to the discovery of admissible evidence in the case in -2- FOWLER WHITE BURNETT P.A. • 901 PHILLIPS POINT WEST, 777 SOUTH FLAGLER DRIVE, WEST PALM BEACH, FLORIDA 33401 • EFTA01103277  Epstein v Rothstein, Edwards CASE NO. 502009CA040800XXXXMBAG Epstein's M/Quask or MPO — Depo Alfred Seckel which the discovery is sought. Fla. R. Civ. P. 1.280(b)(1); Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). 9. "Pretrial discovery was implemented to simplify the issues in a case, to eliminate the element of surprise, to encourage the settlement of cases, to avoid costly litigation, and to achieve a balanced search for the truth to ensure a fair trial." Elkins v. Syken, 672 So. 2d 517 (Fla. 1996) (citing Dodson v. Persell, 390 So. 2d 704 (Fla. 1980); SurfDrugs, Inc. v. Vermette, 236 So. 2d 108 (Fla. 1970)). 10. In Elkins, the Florida Supreme Court commented on the purpose of pretrial discovery: Discovery was never intended to be used as a tactical tool to harass an adversary in a manner that actually chills the availability of information by non-party witnesses; nor was it intended to make the discovery process so expensive that it could effectively deny access to information and witnesses or force parties to resolve their disputes unjustly. Id. at 522. 11. The Court continued its explanation of why discovery must be used only for proper purposes: To allow discovery that is overly burdensome and that harasses, embarrasses, and annoys one's adversary would lead to a lack of public confidence in the credibility of the civil court process. The right to a jury trial in the constitution means nothing if the public has no faith in the process and if the cost and expense are so great that access is basically denied to all but the few who can afford it. Id. 12. Likewise, in Allstate, the Court had reasoned: Discovery of certain kinds of information 'may reasonably cause material injury of an irreparable nature.' This includes 'cat out of the bag' material that could be used to injure another person or party outside the context of the litigation.... -3- FOWLER WHITE BURNETT P.A. • 901 PHILLIPS POINT WEST, 777 SOUTH FLAGLER DRIVE, WEST PALM BEACH, FLORIDA 33401 • EFTA01103278  Epstein v Rothstein, Edwards CASE NO. 502009CA040800XXXXMBAG Epstein's M/Quask or MPO — Depo Alfred Seckel Id. at 94 (citations omitted). That Court, in quashing the district court's decision to permit discovery even after it had been established that such discovery was neither relevant nor likely to lead to the discovery of relevant information, concluded that carte blanche discovery of irrelevant information ought not be sanctioned: [a]though we cannot say that irrelevant materials sought in a discovery request necessarily cause irreparable harm, we do not believe that a litigant is entitled carte blanche to irrelevant discovery. Id. at 95. 13. Rule 1.280(c) affords the Court discretion to grant protective orders for good cause shown and to protect a party from annoyance, embarrassment, oppression, or undue burden or expense. Subsection (c) affords the court broad discretion to limit or prohibit discovery in order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires." Id.; see also Logitech Cargo v. J.W. Perry, 817 So. 2d 1033 (Fla. 3d DCA 2002). 14. Among other things, this Court may enter an order that the requested discovery not be had at all. Rule 1.280(c)(1), Fla. R. Civ. P.; compare Medero v. Fla. Power & Light Co., 658 So. 2d 566, 568 (Fla. 3d DCA 1995)(reversing trial court order denying deposition of material witness). 15. The Rule has been successfully invoked to prevent invasion of privacy of non- parties as well as to prevent the dissemination of defamatory content. Smith v. State, 827 So. 2d 1026, 1030-31 (Fla. 2d DCA 2002)(petition for certiorari granted to protect privacy interests); see also Pescod v. Wells Rd. Veterinary Med. Ctr., Inc., 748 So. 2d 1095 (Fla. 1st DCA 2000) (discovery protective order reasonable within the spectrum of Rule 1.280(c)). -4- FOWLER WHITE BURNETT PA. • 901 PHILLIPS POINT WEST, 777 soma FLAGLER DRIVE, WEST PALM BEACH, FLORIDA 33401 • EFTA01103279  Epstein v Rothstein, Edwards CASE NO. 502009CA040800XXXXMBAG Epstein's M/Quask or MPO — Depo Alfred Seckel 16. In this case, the mere taking of the deposition constitutes waste and harassment. It is anticipated, given the general notice of taking deposition, that counsel to defendant Edwards will ask any and all manner of questions whether they are relevant to this litigation or not. The witness has no direct knowledge and will likely be intimidated or even feel obliged to search for answers he cannot know if required to give testimony at this time. 17. This type of discovery amounts to a litigation tactic which will elicit no relevant information and would, if permitted, merely serve to permit a stream of embarrassing questions about events which have not been shown to have occurred and which could be of no relevance to this case even if they had occurred. Significantly, to be relevant an examination of Mr. Seckel cannot be based on events that occurred well before Mr. Seckel became acquainted with the Plaintiff. WHEREFORE, for the above stated reasons, Plaintiff Jeffrey Epstein moves for entry of a protective order to preventing the taking of the deposition of Alfred Seckel and for such other relief as the Court deems proper in the circumstances. I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via e-mail and U.S. Mail this 2-Lday of May, 2011 to: Jack Scarola, Esq. Searcy Denney Scarola Barnhart & Shipley, P.A 2139 Palm Beach Lakes Blvd. West Palm Beach, FL 33409 Jack A. Goldberger, Esq. Atterbury Goldberger & Weiss, P.A. 250 Australian Avenue South Suite 1400 West Palm Beach, FL 33401-5012 -5- FOWLER WHITE BURNETT P.A. • 901 PHILLIPS POINT WEST, 777 SOLMI FLAGLER DRIVE, WEST PALM BEACH, FLORIDA 33401 • EFTA01103280  Epstein v Rothstein, Edwards CASE NO. 502009CA040800XXXXMBAG Epstein's M/Quask or MPO — Depo Alfred Seckel Marc S. Nurik, Esq. Law Offices of Marc S. Nurik One E. Broward Blvd., Suite 700 Ft. Lauderdale, FL 33301 seph L. Ackerman, Jr. Fla. Bar No. 235954 FOWLER WHITE BURNETT, P.A. 901 Phillips Point West 777 South Flagler Drive West Palm Beach, Florida 33401 Telephone: Facsimile: WA807434ATNPRO61-re A Seckel-SA.docx -6- FOWLER WHITE BURNETT P.A. • 901 PHILUPS POINT WEST, 777 SOME FLAOLER DRIVE, WEST PALM BEACH, FLORIDA 33401 • EFTA01103281  IN THE CIRCUIT COURT OF THE FD JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA0408003COCXM13AG JEFFREY EPSTEIN, Plaintiff(s), vs. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and L.M., individually, Defendant(s). / RE-N TICE OF TAKING DEPOSITION (Only change is via video-conference) TO: All counsel on the attached Counsel List PLEASE TAKE NOTICE that the undersigned attorneys will take deposition(s) of: NAME AND ADDRESS DATE AND TIME LOCATION Alfred Seckel May 23, 2011, at 9:00 a.m. Esquire Solutions PST (12:00 pm EST) Suite 500 1875 Century Park East Los Angeles, CA 90067 upon oral examination before Esquire Deposition Services, a Notary Public; or any other officer authorized by law to take depositions in the State of California. The oral examination is being taken for the purpose of discovery, for use at trial, or for such other purposes as are permitted under the applicable Statutes or Rules. I EXHIBIT 1 EFTA01103282 Edwards adv. Epstein Case No. 502009CA040800)OOO1MBAG Notice of Taking Deposition 2 I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by n it at) E-Mail and U.S. Mail to all Counsel on the attached list, this riot 1- day of I , 2011. Jack ola Flo Bar No.: 169440 S y Denney Scarola Barnhart & Shipley 39 Palm Beach Lakes Boulevard West Palm Beach Florida 33409 Phone: Fax: Attorney for Bradley J. Edwards cc: Esquire Solutions E-TRANSCRIPT, ASCII, CD AND/OR DVD REOUESTED AMERICANS WITH DISABILITIES ACT In accordance with the Americans With Disabilities Act, persons in need of a special accommodation to participate in this proceeding should contact the Human Resources Manager, Searcy Denney Scarola Bamha & Shi ley, P.A., no later than seven days prior to the proceeding. Please telephone EFTA01103283 Edwards adv. Epstein Case No. 502009CA040800)OOOO4BAG Notice of Taking Deposition 3 COUNSEL LIST Jack A. Goldberger, Esquire Atterbury, Goldberger & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 Phone: Fax: Attorneys for Jeffrey Epstein Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, PL 425 N. Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Phone: Fax: Attorneys for Jeffrey Epstein Jose h L. Ackerman Jr., Esquire Fowler White Burnett, P.A. 901 Phillips Point West 777 S Flagler Drive West Palm Beach, FL 33401-6170 Phone: Fax: Attorneys for Jeffrey Epstein Marc S. Nurik Law Offices of Marc S. Nurik One E Broward Blvd., Suite 700 Fort Lauderdale, FL 33301 Phone: Fax: Attorneys for Scott Rothstein EFTA01103284