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NOT A CERTIFIED COPY Filing# 79916533 E-Filed 10/26/2018 11 :09:32 AM JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, V. SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiff. ---------------~/ IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 50-2009CA040800:XXXXMBAG COUNTER-DEFENDANT JEFFREY EPSTEIN'S RESPONSE TO COUNTER-PLAINTIFF BRADLEY J. EDWARDS' MOTION TO STRIKE EPSTEIN'S EXHIBIT AND WITNESS LIST, ETC. Counter-Defendant Jeffrey Epstein ("Epstein") responds to the Motion to Strike Epstein's Exhibit and Witness List Filed October 5, 2018 and to, Once Again, Confirm Existing Pretrial Deadlines filed by Counter-Plaintiff Bradley J. Edwards ("Edwards") on October 10, 2018, and states: INTRODUCTION If this Court meant what it said in its new August 3, 2018, Order Setting Jury Trial ("the Trial Order") (Exhibit A), containing new pre-trial deadlines for the newly severed Counterclaim, then this Court need go no further but to deny Edwards' Motion because Epstein's Exhibit and Witness List were timely filed on October 5, 2018. If, as Edwards suggests, this Court made a mistake in issuing its Trial Order with new deadlines and intends to use the non-severed claims Pre-Trial Stipulation, Jury Instructions and Verdict Forms, then a Binger analysis is required to determine if there is any genuine "surprise" as to exhibits and listing of an expert witness. Edwards FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 10/26/2018 11 :09:32 AM NOT A CERTIFIED COPY agrees that the severed trial requires a new Pre-Trial Stipulation, Jury Instructions and Verdict Forms, but wants to freeze in time Exhibit and Witness Lists for the past year. Edwards already stipulated to the parties both not waiving their "right to amend their Exhibit Lists" in the last Joint Pre-Trial Stipulation executed by both parties' counsel and filed December 22, 2017. (Exhibit B, Section D.) While the Trial Order established new deadlines based on calendar call, because the case is special set and a calendar call date was not referenced in the Trial Order, Epstein calculated pre- trial deadlines based on the first day of trial, this included the date to submit a new Pre-Trial Stipulation (November 14, 2018) which includes Jury Instructions and Verdict Forms, and to exchange Exhibit and Witness Lists (October 5, 2018). Epstein timely filed his Exhibit and Witness Lists on October 5, 2018. This Court properly established new deadlines in the Trial Order to allow the parties to file new pre-trial documents based on Edwards' election to sever his Counterclaim and the requisite new trial date. ARGUMENT A. December 4, 2018 is the First Trial Setting on Edwards' Severed Claims For the more than eight years this case has been pending, and as set forth in the parties' December 22, 2017, Pre-Trial Stipulation, Epstein's claim against Rothstein and Edwards' claim against Epstein were - by the parties' stipulations and prior trial orders - to be tried together. (Exhibit B, Section C.) On March 1, 2018,just 12 days before the scheduled trial date, Edwards for the first time asked to try his Counterclaim separately. At the March 8, 2018, hearing on Edwards' Motion, and as memorialized in its March 13, 2018, Order, the Court granted that request. 2 NOT A CERTIFIED COPY Given Edwards' request for separate trials, the parties' Pre-Trial Stipulation, Jury Instructions and Verdict Forms, as well as trial exhibits and witnesses, must change or the Court runs the risk of significant jury confusion The parties previously filed pre-trial documents - Exhibit Lists, Witness Lists, Rebuttal Witness Lists, Expert Disclosures, Pre-Trial Stipulation, Deposition Designations, Jury Instructions and Verdict Forms - all prepared and based on the claims proceeding together. B. The Court Re-Established Deadlines in the Past While this is the first trial setting of Edwards' severed claims, this Court has established new deadlines almost every time the trial of all claims was set, as follows: Date of First Day of Special/ New Deadlines? Judge Order Trial / Docket Docket 4/15/10 10/25/10 Docket Yes - based on Crow Calendar Call 9/2/10 3/7 /11 Docket No Crow 4/2/13 10/28/13 Docket Yes - based on Crow Calendar Call 11/4/13 6/10/14 Special Yes - based on Crow Trial 11/15/13 5/6/14 Special Yes - based on Crow Trial 12/3/15 8/29/16 Docket Yes - based on Hafele Calendar Call 5/20/16 10/24/16 Docket Yes - based on Hafele Calendar Call 5/24/17 12/5/17 Special Yes - based on Hafele Trial 11/14/17 3/13/18 Special No Hafele Edwards, each time the trial was reset, and seven years after the first trial setting, filed new Exhibit and Witness Lists. In fact, his December 7, 2017, Second Amended Exhibit Lists identifies 218 exhibits compared to the list he filed in June 2010 for the first trial setting which only contained 14 7 exhibits. Importantly, in those seven years, Edwards did not identify an expert witness for the first time until October 6, 2017! 3 NOT A CERTIFIED COPY Establishing new deadlines based on a new trial date and Edwards' severed claims is the correct process and Edwards will not be prejudiced. See infra; Binger v. King Pest Control, 401 So. 2d 1310 (Fla. 1981); Gaspar's Passage, LLC v. RaceTrac Petroleum, Inc., 243 So. 3d 492 (Fla. 2d DCA 2018); Beck v. Holloway, 933 So. 2d 4 (Fla. 1st DCA 2006); Fla. R. Civ. P. 1.440( c) ("If the court finds the action ready to be set for trial, it shall enter an order fixing a date for trial."); 15th Jud. Cir. Admin. Order 3.203-9/08 (Sept. 29, 2008) (providing that the form attached to the order ( except for time deadlines), requiring an exchange of lists of exhibits and witnesses before calendar call "shall constitute the uniform pretrial orders for circuit court civil actions") ( emphasis added). 1 C. Binger Requires this Court to Allow the Exhibits The Trial Order requires the parties to file a new Pre-Trial Stipulation and Exhibit and Witness Lists. This is the appropriate process for a severed counterclaim and new trial date. The Trial Order is the first time any trial order has issued on Edwards' Counterclaim being tried separately. Under Binger and its progeny, any limitation on the use of exhibits that does not consider the bifurcated Counterclaim and new trial date (and specifically, the lack of prejudice to Edwards) would be an abuse of this Court's otherwise broad discretion. 1. Florida Law and Ringer's Cautionary Tale The principles of and analysis required by Binger caution against excluding evidence. "Although a judge has broad discretion in determining whether to exclude evidence due to a party's failure to disclose the evidence within the time required by a pretrial order, the exclusion of such 1 The Circuit's form pretrial order further provides that "[a]t trial, the parties shall be strictly limited to exhibits and witnesses disclosed and objections reserved on the schedules attached to the Pre-Trial Stipulation prepared in accordance with paragraphs D and E, absent agreement specifically stated in in the Pre-Trial Stipulation or order of the Court upon good cause shown." 4 NOT A CERTIFIED COPY evidence is a drastic remedy which should pertain in only the most compelling circumstances and only after the judge has made a case-specific determination as to whether admission of the evidence would result in actual procedural prejudice to the objecting party." Med. Logistics, Inc. v. Marchines, 911 So. 2d 823 (Fla. 1st DCA 2005)(e.s.); see also Tomlinson-McKenzie v. Prince, 718 So. 2d 394 (Fla. 4th DCA 1998) (noting that the court's discretion in such an analysis "should be guided primarily by whether the 'objecting party' would be prejudiced by the admission of the evidence."). An objecting party i