EFTA01103207.pdf

1 3 IN THE CIRCUIT COURT of THE 1 FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR The above-styled cause came on for PALM REACH COUNTY, FLORIDA 2 hearing before the Honorable David F. Crow, CASE NO. 50-2009-CA-040800-AG 3 Circuit Court Judge, at the Palm Beach County JEFFREY EPSTEIN, 4 Courthouse, 205 North Dixie Highway, West Palm Plaintiff, 5 Beach, Florida, on April 22, 2013, commencing va 6 at 9:30 o'clock, a.m., as follows: SCOTT ROTHSTEIN, et al., 7 THE COURT: Okay, we are here on Epstein Defendants. 8 versus Rothstein and Edwards. We are dealing TRANSCRIPT OF HEARING 9 with the objections to the production and a 0 discovery of financial information. I have Volume 1 of 1 1 read both parties submittals. I have read a Pages 1 - 33 2 number of these cases so I am ready to hear DATE: Monday, April 22, 2013 TIME: 9:30 o'clock, a.m. 3 argument. I not sure which motion is first. PLACE: Palm Beach County Courthouse 4 There was objections and your motion. 205 North Dixie Highway Nest Palm Beach, Florida 33401 5 MR. SCAROLA: May I approach, Your BEFORE: Honorable David F. Crow, Circuit Court Judge 6 Honor? This cause cane on to be heard at the tine 7 THE COURT: [think you are the one and place aforesaid. The following proceedings 8 seeking discovery. were reported by: 9 MR. SCAROLA: I am the one seeking Roger Watford, RPR/FPR V.S. Legal Support. Inc. 0 discovery, although it will be our position, 444 Nest Railroad Avenue Suite 300 1 as evidenced by the cases that we have West Palm Beach, Florida 33401 2 submitted, that the burden of establishing the 3 propriety of these privileges rests upon the 4 party asserting the privilege. 5 I have prepared for Your Honor what I 2 4 I APPEARANCES: 1 hope will be of some assistance in getting 2 FOR THE PLAINTIFF/COUNTER-DEFENDANT: LAW OFFICES OF IONIA HADDAD COLEMAN. 2 through this matter, and it is an outline of PA. 3 the procedural history of our efforts to 315 Southeast 7th Street Suite 301 4 obtain financial discovery, which began almost Fon Lauderdale. Florida 33301 5 exactly to the day four months ago on December 6 21, 2012. That's when we served the request HI. r()NJA HADDAD COLEMAN. ESQ. 7 for production and the interrogatories that ATTERBURY. GOLDBERGER & WEISS. PA 8 are the focus of the motion to overrule all 250 Australian Avenue Suite 1400 9 claims of privilege other than claims of Fifth West Palm Beach. Florida 33401 0 Amendment privilege and to impose sanctions. 10 1 We also served I believe at that same time our BY: JACK GOLDBERGER. ESQ. 2 request for admissions that are the subject of 11 1 2 3 our motion pursuant to Rule 1.370 to deem the FOR THE DEFENDANT/COUNTER-PLAINTIFF: 4 request for admissions admitted for failure to 13 SEARCY. DENNEY. SCAROLA. BARNHART 5 file proper responses. Those are basically 14 & SHIPLEY 6 the two matters before the Court. There are 2139 Palm Beach Lakes Boulevard 15 West Palm Beach. Florida 33409 7 competing memoranda, but the motions giving 8 rise to the issues are those two motions. 36 BY: JACK SCAROLA. ESQ. 9 As the outline indicates, in response to 17 0 the discovery requests that were filed on the 18 19 1 21st we received a motion for protective 20 2 order. The motion for protective order 21 22 3 asserted that the discovery requests were 23 4 harassing, oppressive and embarrassing. There 24 25 5 was no assertion of any privilege with regard 1 (Pages 1 to 4) WWW.USLEGALSUPPORT.COM EFTA01103207  5 7 1 to any of the requests that had been made in 1 had an opportunity to review that in some 2 that timely response to the discovery that had 2 detail, what is called a privilege log, it's 3 been posed. 3 far from a privilege log. What it is is a 4 On January 29, following a hearing, Your 4 repetition of objections to having to file a 5 Honor entered an order denying Epstein's 5 privilege log and argument as to why no log 6 motion for protective order, but that order 6 should be filed. 7 did not specifically identify a time period 7 So our position is that Mr. Epstein again 8 for response. The order did say that a 8 has ignored this Court's order, the intent of 9 response was to be made and that the 9 the order, to require that a basis be 10 production made pursuant to the response was 10 established for the privileges that were being 11 to be subject to confidentiality. I have 11 asserted and that on that basis alone all of 12 copies of these pleadings if Your Honor needs 12 these objections, other than the Fifth 13 to see any of the motions or the orders. 13 Amendment privilege objections, can be 14 THE COURT: No, I don't need to see them. 14 overruled. However, we are prepared today to 15 MR. SCAROLA: All right. On February 4, 15 deal with those objections on their merits. 16 2013 Your Honor entered an order compelling 16 We have submitted a memo in detail dealing 17 responses within 20 days because the prior 17 with each of those objections, identifying 18 order did not specify a time. We came back 18 each of the discovery requests by number as to 19 before the Court, I asked you to specify a 19 which we believe the objections cannot 20 time, you specified a time of 20 days. On 20 possibly be supported, but again, with regard 21 February 22nd, 2013 we received unverified 21 to all privilege assertions, the burden falls 22 objections and then on February 25th a 22 upon the other side. 23 verification was filed and we filed a motion 23 We filed our motion to overrule all 24 to strike untimely objections. 24 claims of privilege other than the Fifth 25 On March 4, 2013 a response to that ,.5 Amendment privilege and we filed our Rule 6 8 1 motion to strike was filed and our position 1 1.370 motion to deem the request for 2 was that objections served more than 30 days 2 admissions admitted. That motion, the 1.370 3 beyond the deadline under the rules were 3 motion, addresses only requests for admissions 4 untimely and ought to be stricken and there 4 12 and 13. Those requests are requests that 5 was a motion, as I said, a motion for 5 ask that Mr. Epstein admit that he has not 6 protective order that was filed based upon the 6 paid a single penny in punitive damages and a 7 fact that the interrogatories, the discovery 7 request that he admit that he has not spent a 8 requests in general, were harassing, 8 single day in a state or federal prison 9 oppressive and embarrassing, and Your Honor 9 facility. It is impossible to imagine how an 10 denied the motion for protective order by 10 acknowledgment of those matters that are 11 order of March II, 2013. That order struck 11 clearly matters of record could ever be a link 12 all objections other than privilege and 12 in the chain of incrimination or be covered by 13 required a privilege log, except as to the 13 any of the other privileges that have been 14 Fifth Amendment privilege assertions, within 14 asserted. The responses that were made were 15 15 days. 15 clearly evasive and improper under the rules. 16 On March 20, 2013 we filed a notice of 16 So that's our initial presentation. It's 17 hearing for today's half how hearing to deal 17 our belief that the burden shifts to the other 18 with any privilege assertions that were made. 18 side. I will sit down and shut up and wait to 19 On the 21st Mr. Epstein's counsel filed a 19 hear what they have to say. 20 motion for clarification arguing that all of 20 THE COURT: Before you do that, I want 21 the issues with regard to discovery had been 21 you to list the relief you specifically want. 22 resolved and our filing the notice of hearing 22 You made it clear on the 1.370 that they were 23 was sanctionable. On the 26th of March 23 deemed admitted? 24 Epstein's counsel filed what was labeled as a 24 MR. SCAROLA: Yes, sir. 25 privilege log. I assume by now Your Honor has 25 THE COURT: And you want me to overrule 2 (Pages 5 to 8) WWW.USLEGALSUPPORT.COM EFTA01103208  9 11 1 all objections other than self-incrimination 1 THE COURT: Let me ask you another 2 or Fifth Amendment privilege? 2 question about the procedure. And I know 3 MR. SCAROLA: Yes, sir. 3 certainly the procedure in all of the 4 THE COURT: And that to do that without 4 privileges of self-incrimination. There seems 5 any in camera inspection at all? 5 to be some indication in the case law that 6 MR. SCAROLA: No, sir. What our position 6 some type of hearing or some kind of 7 is, is that from a procedural standpoint Your 7 evidentiary proffer in camera should be 8 Honor could at this point, because of the 8 conducted; is that right? 9 failure to timely assert objections, Your 9 MR. SCAROLA: Yes, sir. That's been my 10 Honor could overrule those objections and not 10 experience in the past, that the Court, with a 11 be obliged to engage in an in camera 11 court reporter, in camera gives the party 12 inspection. 12 asserting the privilege the opportunity to 13 Your Honor can also, on the basis that 13 explain why the discovery sought, whether 14 substantively there has been no support for 14 testimonial or documentary, why the discovery 15 those objections, overrule the objections. So 15 sought could provide a link in the chain of 16 that's alternative number 2. Alternative 16 incrimination with regard to a genuine issue 17 number 3 is, because of a failure to file a 17 of potential criminal liability. 18 privilege log, you could overrule the 18 THE COURT: And am you saying this is an 19 objections. And the fourth alternative is you 19 cx party hearing? 20 could order a privilege log and/or even 20 MR. SCAROLA: It is ex pane, yes, sir. 21 without a privilege log an in camera 21 I am not there. 22 inspection. 22 THE COURT: I just want to know what your 23 Your Honor expressed concern at an 23 position is. 24 earlier hearing about the ability to be able 24 MR. SCAROLA: That's our position. Our 25 to conduct an in camera inspection in light of 25 position is that it's an ex parte proceeding 10 12 1 the Fifth Amendment privilege assertion. The 1 and the purpose of the proceeding, obviously, 2 case law is clear, and I haven't heard 2 is to not allow the party asserting the 3 anything from the other side to rebut that, 3 privilege to be the final arbiter of whether 4 that this Court has the ability to be an 4 there is a reasonable basis for asserting the 5 arbiter of the validity of the assertion of 5 privilege. The Court has the ability and the 6 privilege, even Fifth Amendment privileges, 6 responsibility to conduct that hearing to 7 and you are not precluded from requiring, on 7 determine whether, in fact, there really is a 8 an in camera basis, a showing be made both 8 potential link in the chain of incrimination. 9 with regard to testimonial assertions and 9 THE COURT: Okay. 10 documentary assertions as to why what is asked 10 MR. SCAROLA: Thank you very much, Your 11 for has a causal link or a potential causal 11 Honor. 12 link to the criminal jeopardy that we 12 THE COURT: Counsel. 13 acknowledge Mr. Epstein still faces. 13 MS. COLEMAN: Good morning, Judge. I am 14 There are matters out there. He faces 14 going to speak to all of the other issues with 15 potential criminal liability. We are not 15 the exception of the Fifth Amendment. I am 16 trying to overrule the Fifth Amendment 16 going to allow Mr. Goldberger to speak to 17 privilege. But I want to overrule all the 17 that, since he was Mr. Epstein's criminal 18 other privileges, I want them eliminated, so 18 defense attorney and is far better equipped 19 that when we are before a jury the single 19 than Ito deal with that. 20 privilege that has been asserted is a Fifth 20 I would like to go in reverse order from 21 Amendment privilege, and, as I have explained 21 which Mr. Scarola spoke. With respect to 22 to the Court before, it's our position that 22 their motion to strike or have deemed admitted 23 that will enable us to draw adverse inferences 23 the request for admissions numbers 12 and 13, 24 from those assertions and argue those adverse 24 first, with respect to admission number 12 in 25 inferences before the jury. 25 which Mr. Edwards asked that Mr. Epstein admit 3 (Pages 9 to 12) WWW.USLEGALSUPPORT.COM EFTA01103209  13 15 1 that he has never paid a certain amount of 1 number 13, as drafted, and the Court can look 2 money in damages, Mr. Epstein asserted his 2 at it, it's asking Mr. Epstein to admit that, 3 Fifth Amendment privilege against self- 3 the way it's written ifs a double negative 4 incrimination because this involves financial 4 grammatically, not understandable, and the way 5 issues which could have possibly stemmed from 5 it was responded to, Mr. Epstein admitted it. 6 allegations of criminal misconduct and, 6 He admitted that he served, he pled to 7 therefore, he is asserting his Fifth Amendment 7 certain charges for which he was sentenced to 8 privilege. 8 Palm Beach County Jail, and he served the time 9 It was spelled out very clearly, it was 9 for the charges for which he pled. I don't 10 properly pled, the proper cases were cited, so 10 know how it could be any more clear. He 11 we are in a position, of course, that the 11 admits he went to jail, he admits he pled to 12 Court cannot deem that one admitted because 12 the charges. Quite frankly, it's a matter of 13 Mr. Epstein asserted his Fifth Amendment 13 public record. 14 privilege. 14 So if he didn't answer it in the 15 ME COURT: Let me ask you, a lot of this 15 appropriate manner I am sure there are other 16 is new to me, so there's no way to test a 16 sanctions Mr. Scarola could come up with at 17 Fifth Amendment protection in a civil context, 17 trial, but the point is we couldn't merely 18 there's no way to test the validity of the 18 admit or deny as it was drafted. As such, we 19 Fifth Amendment, by in camera or othenvise, 19 reformulated the sentence to admit basically 20 protection request under a request for 20 what lie was asking but to put it in die proper 21 admissions or not? 21 format so it was very clear as to that portion 22 MS. COLEMAN: My research indicates not 22 to which Mr. Epstein was admitting. 23 under any discovery, Judge. In fact, I have a 23 And I would like to go back with respect, 24 giant pile of cases here for you I would be 24 because you were given again another 25 happy to bring up now or afterwards, but if a 25 handwritten delineation of what's occurred, 14 16 1 witness testifies in writing or orally at any 1 when we filed the initial motion for 2 stage in the proceeding he loses the 2 protective order the only grounds alleged, and 3 privilege. The privilege is waived. That's 3 legally the only grounds required to be 4 the United States Supreme Court case, 4 alleged under the Rules of Civil Procedure, 5 Minnesota vessels Murphy. 5 are grounds of harassment, oppressive or 6 THE COURT: I just want to know what your 6 embarrassing, and that is exactly what we 7 position is so I am clear. Your position 7 raised in our protective order. Once you deny 8 would be that, forget about what the questions 8 the protective order, the law is clear that we 9 are, but he could raise in response to a 9 are permitted to assert any privileges or any 10 request for admissions a Fifth Amendment 10 objections that were not raised in the 11 privilege and that ends the discussion? 11 protective order. 12 MS. COLEMAN: Yes, sir. And ironically 12 Mr. Scarola has not provided this Court 13 there were 13 admissions served. The Fifth 13 with one case to the contrary. I am citing to 14 Amendment was asserted for numbers 1 through 14 you the plain language of the rules. You have 15 12. He answered number 13. So the Fifth 15 already ruled on it, I realize we're not here 16 Amendment was asserted for the first 12 but 16 on a motion for rehearing, but it's very 17 Mr. Scarola is only objecting to number 12. I 17 important, because Mr. Scarola has repeatedly 18 don't know why. I can't presume to know why. 18 accused us of not filing timely our objections 19 MR. SCAROLA: The motion addresses 12 and 19 and our assertions of privilege, and that's 20 13, Your Honor, expressly 12 and 13. 20 simply not true. 21 MS. COLEMAN: If I may finish, we didn't 21 Pursuant to this Court's own order, the 22 assert the Fifth Amendment with respect to 22 deadline for us to file responses, whatever 23 number 13. But the Fifth Amendment was 23 they may be, to the interrogatories and 24 addressed and asserted with respect to number 24 requests to produce was February 25th. We 25 12. With respect to request for admission 25 filed unverified on the 22nd and verified on 4 (Pages 13 to 16) WWW.USLEGALSUPPORT.COM EFTA01103210  17 19 1 the 25th. Therefore, we were well in 1 States, 341 U.S., 479: 2 compliance with this Court's order and with 2 "The Court is forbidden from requiring 3 the applicable law. 3 an invoker of the Fifth Amendment to tell the 4 Second, Judge, with respect to the 4 Court what the response would be even if in 5 request for sanctions for failure to comply 5 camera revelation of the response could 6 with your March llth order, your order clearly 6 surrender the protection." 7 states that we shall provide a detailed 7 Because of that research, Judge, we were 8 privilege log for every request to which we 8 faced with a very unique situation, the Court 9 did not assert the constitutional privilege. 9 admittedly had never seen it, I have never 10 The issue with which we were faced, and 10 seen it, in which we weren't sure how to 11 perhaps it would have been better if we had a 11 provide a privilege log without eviscerating 12 longer hearing before the order was issued in 12 the Fifth Amendment privilege, and the case 13 retrospect, was that the Fifth Amendment 13 law seems clear to me that we can't, but it 14 privilege was asserted to every other 14 don't necessarily mean that our privileges 15 objection or privilege that was asserted to 15 must be stricken. 16 another question. 16 And, because Mr. Scarola offered four 17 And let me be clear because I don't know 17 alternatives, we want to point out to you; 18 that that made sense. 18 number one, our objections were not untimely; 19 THE COURT: It made sense. 19 number two, we complied with the Court's order 20 MS. COLEMAN: Okay. Additionally, Judge, 20 to the best of our legal ability; number 3, we 21 that put us in compliance with your order 21 didn't assert any privileges that were in the 22 because you stated to file a privilege log 22 objections that were asserted in the initial 23 with everything else. By adding in the case 23 request for protective order, and, as such, 24 law applicable to content specific, the 24 didn't violate the Court's previous ruling; 25 document specific privileges, we were not 25 and finally, Judge, with respect to the 18 20 1 trying to relitigate the issue but rather to 1 argument that the category privilege log was 2 educate the Court and Mr. Scarola regarding 2 not sufficient, we would again rely on the 3 the content specific privilege versus the 3 cases that we previously cited in our category 4 document for document privilege, because the 4 specific privilege log memorandum. 5 law is very clear, and again I have the law S And Mr. Goldberger is going to come up 6 here for you, any attempt to provide that 6 and explain more about the Fifth Amendment and 7 privilege log -- 7 talk about the cases on which Mr. Scarola 8 THE COURT: Do you have something other 8 relied in his responses. But after that, if 9 than what you cited in your memo? 9 Mr. Scarola does speak to any of the issues 10 MS. COLEMAN: Yes, we have additional 10 which I have already discussed with you, I 11 cases. 11 would like to be afforded the opportunity to 12 MR. SCAROLA: Which I have not seen, and 12 respond. 13 I request that they be provided, Your Honor. 13 THE COURT: So Mr. Goldberger is going to 14 THE COURT: Have you provided them to 14 deal with the in camera inspection, under what 15 counsel? 15 circumstances I can or cannot look at the 16 MS. COLEMAN: Judge, they were cited in 16 documents? 17 our response, but I will -- 17 MS. COLEMAN: He is, Judge. I am also 18 THE COURT: I thought you said they 18 prepared, by way of example, just to give you 19 weren't cited. 19 a hypothetical example of one of the issues, 20 MS. COLEMAN: The most recent ones we 20 because the other problem with which we are 21 filed, yes, they were. 21 faced, and this is something I want you to be 22 THE COURT: Okay. So all this was in 22 aware of before you rule, the discovery 23 your memo? 23 requests for net worth that were served upon 24 MS. COLEMAN: Yes, Judge. And I would 24 Mr. Epstein are the form post-judgment civil 25 point the Court again to Hoffman versus United 25 procedure rule interrogatories request for 5 (Pages 17 to 20) WWW.USLEGALSUPPORT.COM EFTA01103211  21 23 1 production that are applicable in a post- 1 for allowing us to split this issue and having 2 judgment context. 2 two lawyers. 3 They all ask for documents within the 3 Procedurally, the cases cited by Mr. 4 past five years, accounts upon which someone 4 Scarola are simply just not applicable to the 5 is a signatory, accounts upon which you have 5 situation before Your Honor. All those cases 6 withdrawal authority, et cetera. It's a very 6 deal with unique issues, two in criminal cases 7 important distinction. This is a net worth 7 and one in a civil case, where the Court is 8 discovery, not a post-judgment discovery, and 8 asked to determine whether there's a Fifth 9 furthermore, this discovery is not germane to 9 Amendment privilege that actually exists. 10 Mr. Edwards proving anything he's alleged in 10 In the case before Your Honor Mr. Edwards 11 his case in chief; rather, this goes to 11 has conceded the existence of a valid Fifth 12 punitive damages, so as an alternative we 12 Amendment privilege. They have not raised 13 would offer to the Court, should the damages 13 objections to our invoking our Fifth Amendment 14 issues be bifurcated from the actual 14 privileges. In fact, every time Mr. Scarola 15 allegations, this is something that we could 15 addresses this he says "except for the Fifth 16 at least table or stay until another point in 16 Amendment privilege." 17 time, because Mr. Epstein did, contrary to Mr. 17 THE COURT: I understand. Let me ask you 18 Scarola's assertion -- 18 this question. In this particular case what I 19 THE COURT: Nobody has moved to 19 am having trouble wrapping my head around is, 20 bifurcate, have they? 20 there are multiple objections to this 21 MS. COLEMAN: Not yet, Judge. I am just 21 discovery request independent of the Fifth 22 trying to get this discovery issue organized. 22 Amendment. How do I deal with the 23 We have some motions for discovery we intend 23 attorney/client? 24 to file against Mr. Edwards as well. I'm just 24 I mean, it looks like on the face of it 25 trying to do one thing at a time. 25 some of these privileges, you know, the third 22 24 1 THE COURT: Well, aside from all of the 1 party privilege, some of these on trade 2 privilege issues here which complicate this 2 secrets, I don't know how some of these 3 case, the discovery with regard to net worth 3 privileges could be applicable to some of the 4 is very broad. Forget about the situation in 4 requests, although I may be educated, but how 5 our case. A negligence case, a drunk driver, S would I deal with determining, as Mr. Scarola 6 something like that, it's pretty broad. What 6 says he is entitled to know, that, yeah, the 7 comes into evidence may be different, but the 7 Fifth Amendment is over here but, you know, 8 discovery is pretty broad in punitive damages. 8 these things are not Fifth Amendment? 9 MS. COLEMAN: I understand that. But 9 MR. GOLDBERGER: I wish I had an answer. 10 again the problem with which we're faced here, 10 It's a really difficult issue. My concern is, 11 and I can't really explain it too much due to 11 I represent an individual on past criminal 12 the Fifth Amendment issues, is my client is a 12 charges and potential future criminal charges, 13 financier, he is in the financial industry, so 13 and certainly Mr. Scarola's client is trying 14 some of these requests don't differentiate as 14 to overturn a resolution of the case, so it's 15 to his personal business, et cetera. It's 15 not just some abstract concern about Fifth 16 almost impossible to try to answer when it's 16 Amendment issues, it's a real issue. 17 such a broad request. 17 If, in fact, we are ordered to disclose 18 THE COURT: Well, after I read your 18 in camera to the Court the basis for our Fifth 19 materials, I do understand your position. 19 Amendment privileges, I am very concerned that 20 I've made it very clear. I do understand it. 20 we would have indeed waived our Fifth 21 I just don't know the -- but let Mr. 21 Amendment privilege. And I understand the 22 Goldberger tell me how I should deal with it 22 Court's dilemma in trying to deal with the 23 or at least his position on how I should deal 23 other privileges that arc raised, but my 24 with it. 24 client's constitutional rights must rise 25 MR. GOLDBERGER: Thank you, Your Honor. 25 above, you know, the civil procedure rights. 6 (Pages 21 to 24) WWW.USLEGALSUPPORT.COM EFTA01103212  25 27 1 THE COURT: Well, how do we proceed, put 1 other side. 2 him on the stand at trial and say, "Isn't it 2 So the statement that we concede the 3 true that your net worth is over 20 billion 3 validity of the Fifth Amendment privilege is 4 dollars," and have him take the Fifth 4 not accurate. We are willing to accept the 5 Amendment? 5 alternative remedy available to us, and that 6 MR. GOLDBERGER: If there's an adverse 6 is to draw adverse inferences from the 7 inference that flies from that, so be it, I 7 assertion of the Fifth Amendment privilege. 8 don't know if there is or not, but then Mr. 8 Now, I am not sure, from what Mr. 9 Scarola is left with that. But, you know, the 9 Goldberger told the Court, whether he is 10 three cases cited by counsel, and that's the 10 making a concession. If he is conceding that, 11 point I want to make, they are unique 11 without resolving any of the other privilege 12 circumstances where the Court had to determine 12 issues, we are permitted to call Mr. Epstein 13 whether it was a Fifth Amendment privilege. 13 to the witness stand, have him assert his 14 One is where the guy was given immunity 14 Fifth Amendment privilege and to draw adverse 15 and he was still invoking Fifth Amendment 15 inferences from that, in spite of the 16 privileges, another is a penalty phase case, 16 assertion of other privileges, that solves the 17 and the third is a request for admissions, 17 problem for us. 18 whether that provides a less clear link to 18 I don't think that is what he is telling 19 involve Fifth Amendment privileges. Those are 19 us, but if it is, that is fine, I don't have a 20 all unique factual situations that are not 10 problem. They can assert every privilege in 21 here because counsel has conceded the 11 the world as long as I get to draw an adverse 22 applicability of the Fifth Amendment 12 inference. So that's response number 1. 23 privilege. 23 I want to deal with the argument that was 24 So I've made my presentation, but I am 24 made with regard to the 1.370 motion 25 afraid I can't answer the Court's threshold 25 concerning nests for admissions number 12 26 28 1 question of how do you deal with it. I'm just 1 and 13. Does Your Honor have those requests 2 here to protect my client's Fifth Amendment 2 for admissions? 3 privileges. 3 THE COURT: Pm not sure. I will look 4 THE COURT: Okay, thank you. 4 here. 5 Mr. Scarola, briefly. 5 MR. SCAROLA: Let me hand this to you. 1 6 MR. SCAROLA: Yes, sir. I want to make 6 will start with request number 13, which is 7 it very clear that we are not conceding the 7 alleged to be a double negative. 8 validity of any Fifth Amendment privilege 8 Now, I don't know how it can be asserted 9 assertion. 9 that that request somehow includes a double 10 We are telling the Court that it is not 10 negative and is unclear "Admit that you have 11 our intention to challenge Fifth Amendment 11 never spent even one day in a state or federal 12 privilege assertions except to the extent that 12 prison facility as opposed to a county jail as 13 it is necessary for Your Honor to make a 13 punishment for any sex related crime." 14 determination as to whether any other 14 Now, that request is clear and 15 privilege applies. To that extent we are 15 unambiguous and is not a double negative. The 16 challenging the assertion of the Fifth 16 response that we got is clearly evasive. That 17 Amendment privilege as a bar to Your Honor 17 response is in the pleading that is just ahead 18 making a determination with regard to the 18 of the one that -- just ahead of the request 19 validity of other privilege assertions. 19 for admissions. The response is: "I admit 20 And the case law is very clear that Your 20 that I was sentenced by a state court judge to 21 Honor is entitled to conduct an in camera 21 the Palm Beach County Jail for charges to 22 determination in order to do that if you find 22 which I pled." 23 that procedurally the raising of these 23 That doesn't respond to whether he spent 24 privilege assertions requires more than the 24 a single day in a state or federal prison for 25 opportunities Your Honor has already given the 25 his crimes. That is clearly evasive. Rule 7 (Pages 25 to 28) WWW.USLEGALSUPPORT.COM EFTA01103213  29 31 1 1.370 deals directly with evasive responses 1 Your Honor making a determination with regard 2 and says if the response is evasive the 2 to the validity of all the other privilege 3 request can be deemed admitted. We ask that 3 claims which on their fact in many 4 this request be deemed admitted. 4 circumstances appear absolutely absurd. 5 Number 12: "Admit that you have never 5 Thank you, sir. 6 paid even one penny in punitive damages to any 6 THE COURT: Okay, I am going to have to 7 person who has alleged that you engaged in 7 look at this a little closer and get some help 8 improper sexual conduct with them while that 8 on it I think. I have never seen anything 9 person was a minor." Now, Your Honor is well 9 like this before, so I will have to -- 10 aware of the fact that the payment of other 10 MR. SCAROLA: I am happy to present you 11 punitive damages arising out of the same 11 with some unique legal challenges. 12 misconduct can be used as mitigation against a 12 THE COURT: One of the good things about 13 punitive damage claim. 13 this job is that a day doesn't go by where I'm 14 We are entitled to know whether 14 not presented with something I have never seen 15 Mr. Epstein paid any other punitive damages to 15 before. 16 anyone arising out of -- 16 I just want to make sure I have all the 17 THE COURT: Wait a minute. The punitive 17 authorities of both sides, the memoranda or 18 damage claim in this case deals with the 18 the responses. 19 claims against your client, not claims against 19 MS. COLEMAN: Judge, I have copies of the 20 third parties out there for which, you know, 20 U.S. Supreme Court cases. 21 other people bringing sexual harassment 21 THE COURT: Are they cited in your 22 charges or conduct charges, but this is not 22 memorandum? 23 similar conduct. 23 MS. COLEMAN: They are, but I have copies 24 MR. SCAROLA: The allegation in this case 24 for everybody. 25 is that the motive behind the charges brought 25 THE COURT: Yes, I will take copies. 30 32 1 by Mr. Epstein against Mr. Edwards was to 1 MS. COLEMAN: I have copies for Mr. 2 avoid any civil liability, including any 2 Scarola as well. 3 punitive damage liability, arising out of his 3 MR. SCAROLA: Thank you. But I don't 4 earlier sexual misconduct. 4 need them. 5 It is reasonably calculated to lead to 5 MS. COLEMAN: And the other -- 6 admissible evidence with regard to that motive 6 MR. SCAROLA: As long as they are cited, 7 to be able to talk to the jury about the 7 I don't need them. 8 extent to which he has or has not been subject 8 THE COURT: Counsel, I have another 9 to punitive damages in those prior claims 9 hearing. Just take them back there and _0 beyond which no objection was ever raised to 10 complete them and give them to the deputy _1 relevancy or materiality. 11 before you leave, okay? .2 The objection is Fifth Amendment 12 MS. COLEMAN: Yes. _3 privilege. That is the objection. That's the 13 MR. GOLDBERGER: Thank you, Your Honor. .4 objection that Your Honor is dealing with. 14 (Hearing concluded at 10:05 o'clock, -5 And that objection ought to be overruled. 15 a.m.) _6 There is no showing with regard to that 16 _7 objection. 17 _8 So the procedure that we have outlined, I 18 -9 suggest to Your Honor, the procedural 19 20 alternatives are the procedural alternatives 20 n that exist, and at the very least we are 21 22 entitled to have Your Honor conduct an in 22 23 camera inspection or assessment by way of 23 24 interview to determine whether any of these 24 25 Fifth Amendment privileges stand as a bar to 8 (Pages 29 to 32) WWW.USLEGALSUPPORT.COM EFTA01103214  33 CERTIFICATE OF REPORTER 2 3 4 I, Roger Watford, Florida Professional 5 Reporter, certify that I was authorized to and 6 did stenographically report the foregoing 7 proceedings and that the transcript is a true 8 and complete record of my stenographic notes. 9 0 I further certify that I am not a 1 relative, employee, attorney or counsel of any of the parties, nor am I a relative or 3 employee of any of the parties' attorneys or 4 counsel connected with the action, nor am I 5 financially interested in the action. 6 7 Dated this 4th day of April, 2013. 8 9 20 21 22 Roger Watford, FPR/RP la 23 24 5 9 (Page 33) WWW.USLEGALSUPPORT.COM EFTA01103215  Page 1 A allow 12:2,16 assertion 4:25 10:1,5 business 22:15 ability 9:24 10:4 12:5 allowing 23:1 21:18 26:9,16 27:7,16 19:20 alternative 9:16,16,19 assertions 6:14,18 7:21 C able 9:24 30:7 21:12 27:5 10:9,10,24 16:19 calculated 30:5 above-styled 3:1 alternatives 19:17 26:12,19,24 call 27:12 absolutely 31:4 30:20,20 assessment 30:23 called 7:2 abstract 24:15 Amendment 4:10 6:14 assistance 4:1 camera 9:5,11,21,25 absurd 31:4 7:13,25 9:2 10:1,6,16 assume 6:25 10:8 11:7,11 13:19 accept 27:4 10:21 12:15 13:3,7,13 attempt 18:6 19:5 20:14 24:18 accounts 21:4,5 13:17,19 14:10,14,16 ATTERBURY 2:7 26:21 30:23 accurate 27:4 14:22,23 17:13 19:3 attorney 12:18 33:11 case 1:3 10:2 11:5 14:4 accused 16:18 19:12 20:6 22:12 23:9 attorneys 33:13 16:13 17:23 19:12 acknowledge 10:13 23:12,13,16,22 24:7,8 attorney/client 23:23 21:11 22:3,5,5 23:7 acknowledgment 8:10 24:16,19,21 25:5,13 Australian 2:8 23:10,18 24:14 25:16 action 33:14,15 25:15,19,22 26:2,8,11 authorities 31:17 26:20 29:18,24 actual 21:14 26:17 27:3,7,14 30:12 authority 21:6 cases 3:12,21 13:10,24 adding 17:23 30:25 authorized 33:5 18:11 20:3,7 23:3,5,6 additional 18:10 amount 13:1 available 27:5 25:10 31:20 Additionally 17:20 and/or 9:20 Avenue 1:23 2:8 category 20:1,3 addressed 14:24 answer 15:14 22:16 avoid 30:2 causal 10:11,11 addresses 8:3 14:19 24:9 25:25 aware 20:22 29:10 cause 1:20 3:1 23:15 answered 14:15 a.m 1:15 3:6 32:15 certain 13:1 15:7 admissible 30:6 appear 31:4 certainly 11:3 24:13 APPEARANCES 2:1 B CERTIFICATE 33:1 admission 12:24 14:25 admissions 4:12,14 8:2 applicability 25:22 back 5:18 15:23 32:9 certify 33:5,10 8:3 12:23 13:21 14:10 applicable 17:3,24 21:1 bar 26:17 30:25 cetera 21:6 22:15 14:13 25:17 27:25 23:4 24:3 BARNHART 2:13 chain 8:12 11:15 12:8 28:2,19 applies 26:15 based 6:6 challenge 26:11 admit 8:5,7 12:25 15:2 approach 3:15 basically 4:15 15:19 challenges 31:11 15:18,19 28:10,19 appropriate 15:15 basis 7:9,11 9:13 10:8 challenging 26:16 29:5 April 1:15 3:5 33:17 12:4 24:18