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NOT A CERTIFIED COPY Filing# 70209017 E-Filed 04/04/2018 10:14:24 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 PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S SUPPLEMENT 1 TO MOTION FOR COURT TO DECLARE RELEVANCE AND NON- PRIVILEGED NATURE OF DOCUMENTS AND WITH SPECIFIC REQUEST FOR IN CAMERA REVIEW TO DETERMINE RELEVANCE, INAPPLICABILITY AND/OR WAIVER OF ATTORNEY-CLIENT PRIVILEGE AND ATTORNEY WORK PRODUCT WITH REGARD TO SEALED DOCUMENTS Plaintiff/Counter-Defendant, Jeffrey Epstein ("Epstein"), moves this Court for an in camera inspection to confirm the relevance of, and the absence and/or waiver of, any attorney- client privilege and work-product protection for the 47 documents 2 identified on Epstein's Clerk's Trial Exhibit List which Counter-Plaintiff Bradley J. Edwards ("Edwards") has improperly withheld from discovery, and for the Court to find that all such documents withheld on the basis of irrelevance, attorney-client privilege and attorney work product should be unsealed, produced and deemed admissible at trial, and states: 1 The original Motion was filed on March 5, 2018, but not ruled on before the March 9, 2018, appellate court stay. 2 Edwards identified 49 e-mails on Epstein's Clerk's Trial Exhibit List that he alleged were privileged, however, two of those e-mails were pages within other exhibits and the total number ofalleged ''privileged" exhibits is 47. Epstein may be able to reduce the number of documents for the Court's in camera review even further if the Court will unseal the exhibits so Epstein's counsel can review them and select those most dispositive of the issues Edwards has made central in this case. FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 04/04/2018 10:14:24 AM NOT A CERTIFIED COPY PREFACE No Court, not this Court or the Special Master appointed by the Bankruptcy Court, has ever conducted an in camera inspection of the documents identified on Edwards' February 23, 2011 privilege log 3 ruled by this Court to be legally deficient and in violation of Florida Rules of Civil Procedure and binding legal precedent. Now that the appellate court has made this time available to address pending matters, it is up to this Court to determine whether Edwards may continue to conceal and withhold from the jury clearly relevant, case-ending evidence that makes it impossible for Edwards to satisfy his heavy burden to establish a cause of action against Epstein for malicious prosecution. Although Epstein is asking the Court to conduct a limited in camera review of 47 documents4, none of the documents, in fact, are attorney-client communications, and Edwards has waived his work-product protections with regard to those documents. Once this Court confirms, as it should, that none of the 4 7 documents reflect communications between Edwards and his clients, and therefore that they are not subject to the attorney-client privilege, these documents should be permanently unsealed, deemed produced and ruled to be admissible, and Epstein should be permitted to introduce them as evidence at trial. INTRODUCTION The 47 documents (referred to as "e-mails") that Epstein asks this Court to review in camera directly relate to the strength of Edwards' clients' cases against Epstein, Edwards' 3 The February 23, 2011 privilege log was prepared by Edwards when he was working at the law firm of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. ("Farmer Jaffe"), which is now dissolved. While the privilege log is entitled in the name of that firm, for purposes of this Motion, it will be referred to as "Edwards' privilege log." 4 Epstein has segregated the newly identified e-mails from his March 5, 2018, Clerk's Trial Exhibit List, which include the 47 documents Edwards claims are "privileged" as well as other documents over which a privilege has not been claimed. Pursuant to the Court's direction at the March 8, 2018, hearing, to preserve his appellate rights, Epstein will file those exhibits under seal upon the Court's entry of a sealing order. To assist the Court, the 47 exhibits for the Court's in camera review are identified on Exhibit A. 2 NOT A CERTIFIED COPY association and interaction with Scott Rothstein ("Rothstein"), Edwards' damages claim, and the overall credibility of Edwards' allegations against Epstein. These e-mails are not only relevant and material, they eviscerate Edwards' case, making it impossible for him to satisfy his heavy burden to prove the absence of probable cause for Epstein to have filed suit against him. Epstein is entitled to have the Court and jury consider these e-mails as it determines whether Epstein exceeded the wide latitude which the law confers on all plaintiffs "to use their best judgment in prosecuting ... a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct." Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 384 (Fla. 2007)( quoting from Levin, Middlebrooks, Mabie, Thomas, Mayes Mitchell, P.A. v. United States Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994)). As explained fully below, Edwards has improperly withheld these undeniably relevant e- mails from valid discovery requests for more than eight years after having waived any even remotely arguable protection that might apply to them. Further, in order to ensure that the e-mails would never see the light of day, Edwards concealed their existence by hiding them within a deceptively worded 1,607-entry, 159-page privilege log that this Court found was insufficient on its face and did not comply with the requirements of Florida Rule of Civil Procedure 1.280(b)(5) 5 and TIG Ins. Corp. v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001). Despite Edwards' efforts, however, the e-mails have been discovered (albeit inadvertently). Lacking any legal justification for withholding them in the first place, and having concealed this misconduct through a deceptively vague and non-compliant privilege log designed to ensure that the existence of these documents would never be detected, Edwards is now left with no choice but to protest wildly with unfounded 5 Florida Rule of Civil Procedure 1.280 has been amended since the Court's Order and privilege claims are now addressed in subsection ( 6) of that Rule. 3 NOT A CERTIFIED COPY allegations of "stolen" e-mails hoping that this will distract this Court from its duty to conduct an examination of the documents Edwards has so improperly withheld and concealed. This Court has repeatedly expressed its intention to maintain a level playing field between the parties in order to ensure a fair trial. This Court has correctly recognized that in his malicious prosecution cause of action against Epstein, Edwards has an onerous burden to establish a total absence of probable cause for Epstein to have commenced and continued his lawsuit. In that regard, the elements of a malicious prosecution claim are deliberately onerous. It is the only cause of action in Florida that escapes application of the litigation privilege and the absolute immunity that privilege affords to plaintiffs and their counsel, so that they may feel free to use their best judgment to prosecute their claims without fear of a retaliatory civil lawsuit. Echevarria at 384. The heavy burdens built into the elements of malicious prosecution are imposed in lieu of the absolute litigation privilege, so that a malicious prosecution claim may not be used as a tool to chill putative plaintiffs, such as Epstein, from bringing suit. It is not automatically available to all who are able to defend against a lawsuit without