EFTA00804571.pdf

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA JEFFREY EPSTEIN, ) ) ) Petitioner/Counter-Defendant, ) ) vs. No. 50-2009CA040800XXXXMBAG ) SCOTT ROTHSTEIN, individually, ) and BRADLEY J. EDWARDS, ) individually, ) ) ) Defendants/Counter-Plaintiff. ) West Palm Beach, Florida November 2nd, 2018 10:25 a.m. - 1:06 p.m. Plaintiff/Counter-Defendant Epstein's Motion to Allow Amendment to Exhibit List, et al. The above-styled cause came on for hearing before the Honorable Donald W. Hafele, Presiding Judge, at the Palm Beach County Courthouse, West Palm Beach, Palm Beach County, Florida, on the 2nd day of November, 2018. Palm Beach Reporting Service, Inc. EFTA00804571  L 1 APPEARANCES: 2 For The Plaintiff/Counter-Defendant: 3 LINK & ROCKENBACH, PA 4 1555 Palm Beach Lakes Boulevard, Suite 930 West Palm Beach, Florida 33401 5 By SCOTT J. LINK, ESQUIRE and KARA BERARD ROCKENBACH, ESQUIRE 6 7 For The Defendant/Counter-Plaintiff: 8 SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, 9 P.A. 2139 Palm Beach Lakes Blvd. 10 West Palm Beach, Florida 33409 By JOHN "JACK" SCAROLA, ESQUIRE 11 and DAVID P. VITALE, JR., ESQUIRE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Palm Beach Reporting Service, Inc. EFTA00804572  3 1 THEREUPON, the following proceedings were had. 2 THE COURT: Good morning, everyone. 3 MR. LINK: Good morning, Your Honor. 4 MS. ROCKENBACH: Good morning, Your Honor. 5 MR. SCAROLA: Good morning. 6 THE COURT: Thank you for appearing on 7 relatively short notice and trying to narrow 8 some of the issues that we are dealing with as 9 we prepare for December 4th. 10 I trust that both sides received the 11 notice that I sent out regarding this media 12 company that seeks to film the trial. Just as 13 a precursor to any objections that are going to 14 be filed, if any, I have had this situation -- 15 MR. SCAROLA: Can we be seated, sir? I'm 16 sorry. 17 THE COURT: Sure. I apologize. 18 MR. SCAROLA: No, no, quite all right. 19 I'm getting old. 20 THE COURT: Yeah, that's okay. 21 MR. SCAROLA: Older. 22 THE COURT: What I was going to say is 23 that I had this come up one other time, not 24 with this company but with a company that 25 typically requests this, and I believe Palm Beach Reporting Service, Inc. EFTA00804573  4 1 requested it for the prior trial. 2 And in that other matter, it was a medical 3 malpractice case where both attorneys or each 4 side came to me and said that they had been 5 receiving competing emails from this company, 6 essentially threatening them that if they 7 didn't order their products then the other side 8 would, and the other side would have a 9 significant advantage at trial under those 10 circumstances. 11 So both sides -- and it was a sensitive 12 issue regarding a child that was the subject of 13 the alleged malpractice, and both the doctor 14 and the child's family did not want the case 15 videotaped. But, I was running up against 16 them, that being the media company, not having 17 an attorney, both sides not wanting it, finding 18 and seeing those competing emails that they 19 said were completely and entirely untrue, that 20 being the lawyers, who were very reputable 21 counsel on both sides. 22 And so I made an initial ruling that 23 because both sides believed that they were not 24 being told the absolute truth, and because this 25 company was not a true media outlet but, in Palm Beach Reporting Service, Inc. EFTA00804574  5 1 fact, was a for-profit trial service company, I 2 made an initial ruling that I wasn't going to 3 allow it to happen. 4 Well, that ended up in a front-page 5 article about the -- that I had set up some 6 type of a -- it escapes me now -- some type of 7 a confrontation where the first amendment was 8 being implicated, and people who I didn't know 9 were weighing in on my attempt to silence the 10 media, and all the rest of the stuff. 11 So the media company then, I believe, 12 retained counsel and came in and said, okay, we 13 want to do it, and because the Florida rule 14 requires or states that one camera and one 15 camera operator minimal is to be permitted, I 16 did permit it. The "PS" of that story, which 17 was never reported, was three days after the 18 commencement of the five-week trial, they left. 19 Why? Well, you can draw your own 20 conclusions. Mine, I believe is a 21 well-reasoned hypothesis, and that is nobody 22 ordered their stuff. So since then, whenever I 23 have this request, I require the company, if 24 it's going to be done, to pledge to the Court 25 in writing that they will remain for the entire Palm Beach Reporting Service, Inc. EFTA00804575  1 duration of the trial. And if they don't, then 2 they have essentially availed themselves of 3 being sanctioned for fraudulent representation 4 to the Court, because they become a part of the 5 process by rule. 6 The bottom line is there has to be, as I 7 understand it, at least one camera and one 8 camera operator at the court -- or in the 9 courtroom, by rule. It doesn't say which 10 camera operator or which camera or whose camera 11 operator or whose camera, but my understanding 12 is that the rule requires that, if there is a 13 request by the media. 14 Now, again, how that's defined, it just 15 came to me as I was walking out to bring it to 16 your attention and to advise you of my 17 experience in those types of situations. And 18 this company, I believe, is part of the email 19 says that they were going to do this if they 20 were permitted, gavel to gavel, so to speak; 21 from the beginning to the end of the trial. 22 They may have known of my other concern 23 because Ms. Oats, O-A-T-S, is in charge of 24 these requests from court administration. So 25 again, because I thought of it as we were Palm Beach Reporting Service, Inc. EFTA00804576  1 walking out, I wanted to make you aware of it. 2 And, again, I think I put a deadline in 3 the notice to file any objections you may have, 4 and to set it for an 8:45 if there are any 5 objections within the time frame set forth, but 6 we don't need any further discussion on that. 7 I just wanted to share with you, though, some 8 of the things that we deal with. 9 I believe it's a rule of judicial 10 administration that I'm speaking about. I 11 could find it, if necessary, but I believe that 12 we don't need to go further on that. 13 Okay. So we're here today to discuss the 14 proposed additional exhibits. The witness that 15 was the potential cause of concern has been 16 withdrawn for the purposes of the action by 17 Mr. Edwards against Mr. Epstein, so that is 18 moot at this juncture. And we'll launch into 19 the discussion relative to the proposed 20 exhibits. 21 I don't know if -- I know Mr. Scarola was 22 busy this morning and likely trying to prepare 23 for whatever hearing he had in front of another 24 judge today, so I don't know how much you've 25 had a chance to discuss this and whether or not Palm Beach Reporting Service, Inc. EFTA00804577  8 1 there has been any common ground that's been 2 reached as it concerns, one, the procedure that 3 we're going to utilize in terms of this 4 particular exercise or, two, the threshold 5 issue of whether or not any additional exhibits 6 are going to be permitted at all. 7 So, Mr. Link, as the movant, I will let 8 you speak first, then Mr. Scarola, I'll follow 9 up with you. 10 MR. SCAROLA: Your Honor, if I might, 11 there are a few of these exhibits that we are 12 not objecting to, and it may be helpful if I 13 identify those. And when I say "we are not 14 objecting," we are not objecting on the basis 15 that these are late-listed exhibits. 16 THE COURT: I understand. 17 MR. SCAROLA: There may very well be 18 evidentiary objections that we have, but on the 19 submission to the Court -- 20 THE COURT: Okay. Let me get to it 21 because, again, in viewing it last night, I 22 should have tabbed it, but I didn't. But I 23 think I have it. 24 MR. LINK: Your Honor, I have a tabbed 25 version, if that helps you. Palm Beach Reporting Service, Inc. EFTA00804578  9 1 THE COURT: I've got it right in front of 2 me. But thank you very much. It may have, if 3 I wasn't able to find it as quickly as I 4 luckily was. Okay. 5 MR. SCAROLA: This is Epstein's supplement 6 to motion to allow amendment to exhibit list. 7 THE COURT: I have it. 8 MR. SCAROLA: And on page 2 of the 9 attachment, the amended exhibit list, at the 10 bottom there are two items in blue. 11 THE COURT: I'm with you; 26 and 27, for 12 the record. 13 MR. SCAROLA: That's correct, 26 and 27, 14 for the record. 15 And those were documents that were 16 obtained by the defense subsequent to the due 17 date for the exhibit list, and we do not object 18 on the basis of late disclosure to those two 19 items. 20 THE COURT: Remind me who 21 is? 22 MR. SCAROLA: Yes. , Your 23 Honor, is one of Mr. Epstein's victims. She 24 has had a prominent public role with respect to 25 accusations against Mr. Epstein, and is the Palm Beach Reporting Service, Inc. EFTA00804579  10 1 victim of Mr. Epstein, who has alleged that she 2 was transported to various locations around the 3 country and outside the country, and that she 4 was prostituted to third parties by 5 Mr. Epstein. 6 So there are allegations against a number 7 of prominent individuals that were made by 8 Ms. that formed the basis for the 9 issuance of subpoenas or the discussion about 10 the issuance of subpoenas by Mr. Edwards that 11 Mr. Epstein alleged had no basis in good faith 12 and were intended solely to "gin up the claims 13 against Mr. Epstein." 14 THE COURT: Is she now a resident of 15 16 MR. SCAROLA• 17 THE COURT: Okay. That helped to refresh 18 my recollection. 19 MR. LINK: And Your Honor may recall that, 20 at least as of the last time we visited this 21 issue, Your Honor had indicated that you were 22 going to let Mr. Edwards talk about his three 23 clients, and none of the others unless they 24 made a connection, and she fit within that 25 category. We listed this for a different Palm Beach Reporting Service, Inc. EFTA00804580  11 1 purpose. But I know we're not doing the 2 evidence today. 3 THE COURT: Right. Okay. All I'm getting 4 to is 26 and 27 is not being objected to based 5 upon late filing. 6 What about 28? 7 MR. SCAROLA: Same with regard to 28, Your 8 Honor. 9 THE COURT: And 29? 10 MR. SCAROLA: 29 appears to be some form 11 of argument. And I haven't seen this 12 comparison, but I assume -- 13 MR. LINK: Your Honor, we withdrew it from 14 our exhibit list that we filed, I think it was 15 last week. 16 THE COURT: Okay. So that's been 17 withdrawn. 18 MR. SCAROLA: Okay. All right. 19 THE COURT: So we can put a mark there. 20 Thank you. 21 MR. LINK: We're looking at the exhibit 22 list, Your Honor, that we submitted back in 23 March or April. I think it was March. We have 24 removed items from this list. 25 THE COURT: Okay. Well, I'm looking at Palm Beach Reporting Service, Inc. EFTA00804581  12 1 this, this is May 2nd filing. 2 MR. LINK: Yes, sir, that -- we actually 3 pared that down even further. 4 THE COURT: Okay. Do you have that with 5 you? 6 MR. LINK: Yes, sir. 7 THE COURT: All right. Has Mr. Scarola, 8 Mr. Vitale received a copy of that? 9 MR. LINK: Yes, sir. Yes. We filed that 10 as part of our compliance with this Court's 11 pretrial order, which then we discussed 12 yesterday. 13 THE COURT: Okay. Mr. Scarola may still 14 be working off the May 2 filing. 15 MR. SCAROLA: Yeah, that's the one that I 16 was working off of. 17 MR. LINK: I'm sorry, 28 and 29 are the 18 only two that we removed. 19 THE COURT: 28 and 29 are the only two you 20 removed? 21 MR. LINK: Yes, sir. 22 THE COURT: Okay. That's fine. So 28's 23 been withdrawn. 24 But, Mr. Scarola, are you going to seek 25 its admission otherwise? Palm Beach Reporting Service, Inc. EFTA00804582  13 1 MR. SCAROLA: If they are listing the, 2 the -- 3 THE COURT: Numbers 26 and 27. 4 MR. SCAROLA: If they're listing 26 and 5 27, then we would probably want to use the 6 transcript; yes, sir. 7 THE COURT: All right. So, what's your 8 thoughts, Mr. Link? 9 MR. LINK: I don't know how he can use an 10 exhibit that we have withdrawn from the list. 11 It's not on his exhibit list. 12 THE COURT: I tend to agree. 13 MR. SCAROLA: Well, the -- 14 THE COURT: And let me explain why, to 15 give you a basis for my, at least, proposed 16 ruling. And that is we're here primarily today 17 to discuss late-filed exhibits. And if the 18 counter-plaintiff, who I'll refer to the best 19 that I can without confusing the names, 20 Mr. Edwards, has not listed a given exhibit, 21 then it's my inclination that what's good for 22 the goose is good for the gander, and that is 23 that I'm not going to simply allow an addition 24 at now this even-later juncture. 25 And I will note for the record, again, as Palm Beach Reporting Service, Inc. EFTA00804583  14 1 we did yesterday, that because the parties were 2 aware of the August order that was -- and I 3 take responsibility -- erroneously sent out in 4 its form, the announcement of the trial was 5 appropriate, but the form of saying it was 6 contrary to specific rules that I had entered 7 earlier relative to the addition of any 8 exhibits or witnesses, as well as any 9 discovery. 10 And, again, that was agreed to by the 11 parties, that they recognized that in August, 12 but chose not to deal with that particular 13 issue until later. So I'm not holding it 14 against either party that it was not brought to 15 my attention earlier. 16 But if we're dealing with late exhibits, 17 again, I am inclined to accept a withdrawal and 18 not accept a late -- at this point now, later 19 filing or later announcement or listing of an 20 exhibit by the other side. 21 Mr. Scarola? 22 MR. SCAROLA: I just want to be sure that 23 Your Honor is focusing on what it is we are 24 talking about here. The specific exhibits. 25 27 is a notice of filing the transcript of Palm Beach Reporting Service, Inc. EFTA00804584  15 1 2 3 26 is that audio of the interview. And 4 all that we're talking about with regard to 28 5 is a transcript of the audio that is attached 6 to the notice that was filed. I don't know 7 that that makes any difference to Your Honor -- 8 THE COURT: I don't know -- yeah, what's 9 the difference between -- now that I'm looking 10 at it? I was just giving a global ruling as 11 what I believed to be fair in terms of any late 12 exhibits. But I don't know what the difference 13 is between 27 and 28. Can somebody explain 14 that to me from the Epstein side, please? 15 MR. LINK: Yes, sir. 28 was a transcript 16 that we had the court reporter prepare for us 17 because of some blanks that were in 18 Mr. Scarola's that said inaudible, and we've 19 withdrawn that exhibit, Your Honor. 20 THE COURT: No, 27 -- 21 MR. LINK: I'm sorry. I thought you asked 22 the difference in 27 and 28. 23 27 was prepared by Mr. Scarola's office. 24 THE COURT: Okay. 25 MR. LINK: 28, because there were portions Palm Beach Reporting Service, Inc. EFTA00804585  16 1 of the transcript that said "inaudible," we 2 hired a court reporter to listen very 3 carefully, and see if she could fill in those 4 blanks. And so we're withdrawing ours as an 5 exhibit, and Mr. Scarola, it's been on his 6 exhibit list, I think a long time, they've 7 submitted it to the Court. 8 MR. SCAROLA: I think it has been also, 9 yes. 10 MR. LINK: So, that's the -- 11 THE COURT: Okay. So is 28 simply an 12 addition of what Mr. Scarola had on the exhibit 13 list? 14 MR. LINK: It was a separate transcript 15 prepared by a court reporter that we hired, 16 because the transcript that Mr. Scarola 17 submitted -- 18 THE COURT: I now understood the 19 distinction. What I'm trying to get to, 20 though, is 28 part of what was already listed 21 by Mr. Scarola in his exhibit list? 22 MR. LINK: Sort of, yes, because the court 23 reporter was filling in blanks. 24 THE COURT: Okay. So I think that perhaps 25 it's probably going to be helpful if there Palm Beach Reporting Service, Inc. EFTA00804586  17 1 are -- and if there is an official court 2 reporter who has listened to that audiotape and 3 is qualified to fill in those blanks as 4 indicated. It would be perhaps a completeness 5 issue that could be argued would make that a 6 better transcript than an unofficial 7 transcript. 8 MR. LINK: I think that would be true if 9 we had not withdrawn it from the list, Your 10 Honor. I don't know how an exhibit that we 11 withdrew can be used for completeness by the 12 plaintiff. 13 THE COURT: Okay. But maybe I'm still 14 misunderstanding. I thought you said that that 15 was listed -- 16 MR. LINK: No, sir, 27 is listed on 17 theirs, not 28. 18 THE COURT: All right. 19 MR. SCAROLA: All exhibits listed by the 20 defendant are listed by the plaintiff. 21 THE COURT: Yeah, but that catchall is -- 22 MR. LINK: Now we're going to catchalls, 23 Judge. 24 THE COURT: Yeah. And the catchall was a 25 primary focus of your motion to strike. Palm Beach Reporting Service, Inc. EFTA00804587  1 MR. LINK: I remember being verbally 2 beaten by Mr. Scarola. 3 THE COURT: That's okay. As long as it 4 was not listed as an exhibit prior and it's 5 being withdrawn, as far as the Court is 6 concerned, I am going to strike it and/or allow 7 it to be withdrawn, and it will be withdrawn. 8 And so reliance will have to be made with 9 respect to the original tape and the transcript 10 that was provided by whomever it was that was 11 provided. 12 MR. LINK: Essentially, Your Honor, we 13 figured the tape is the best evidence, so that 14 was our thing. 15 THE COURT: All right. I'll go along with 16 that. 17 MR. LINK: Your Honor, I was going to 18 do -- I'm going to do a presentation, but 19 Exhibit 24 was listed because Mr. Berger, last 20 time, was going to be having surgery during 21 trial. If counsel represents he'll be here, 22 neither one of us need his transcript. We can 23 obviously use it as cross, but we don't need to 24 make it an exhibit. 25 THE COURT: Do you expect him to testify Palm Beach Reporting Service, Inc. EFTA00804588  19 1 live? 2 MR. SCAROLA: I am told by Mr. Berger that 3 he is unavailable the first week, but expects 4 to be available the second week. 5 THE COURT: Okay. Then I'm going to take 6 that as that he will testify live. We'll call 7 him out of turn, if necessary, but the 8 transcript itself as evidence will apparently 9 not be necessary. 10 MR. LINK: Yeah, that was why I listed it, 11 in case he was unavailable. 12 MR. SCAROLA: Your Honor, deposition 13 transcripts don't get introduced into evidence 14 anyway. They are published to the jury. 15 THE COURT: Let me -- they are published 16 and there may be a filing if there's a 17 necessity to have it filed, but... 18 MR. SCAROLA: Yes, Your Honor. 19 THE COURT: It's at least better to 20 understand why it's listed, than not. If it 21 was to caution against its unavailability 22 potentially then that was filed. 23 All right, what's next to be addressed? 24 MR. LINK: Anything else, Mr. Scarola? 25 MR. SCAROLA: Those are the only ones that Palm Beach Reporting Service, Inc. EFTA00804589  20 1 we're prepared to stipulate to. 2 THE COURT: Any of these other yellow ones 3 that need to be addressed, or... So what I'm 4 understanding is, the rest need to be 5 addressed. Those are the only ones that we had 6 a relative stipulation? 7 MR. SCAROLA: Yes, sir. 8 THE COURT: All right. 9 MR. LINK: May it please the Court. 10 THE COURT: Okay. Go ahead. 11 MR. LINK: The Court's pleased? Always 12 pleased to see us. Fair enough. 13 Your Honor, I just, as a point of 14 clarification, Mr. Scarola handed us a document 15 that discusses the 47 exhibits and it was my 16 understanding that today we were going to be 17 addressing my motion to add exhibits to my 18 exhibit list, not the 47. Because the 47 19 require an in camera inspection by this Court, 20 as well as argument as to whether if there was 21 a privilege, it was waived by crime-fraud 22 exception, turning them over to somebody else, 23 various other reasons. 24 So I'm here today to focus on my motion 25 THE COURT: Right. All I'm -- Palm Beach Reporting Service, Inc. EFTA00804590  21 1 MR. LINK: -- which is what this Court 2 said yesterday we would focus on. 3 THE COURT: All I'm prepared to do today 4 are these yellow or blue amendments to the 5 exhibit list. 6 MR. LINK: Yes, sir. 7 THE COURT: Is that what you're talking 8 about? 9 MR. LINK: Yes, sir. That's what you said 10 yesterday, so I just wanted to make sure we 11 were on the same page, because that's the 12 motion -- 13 THE COURT: That's what I'm doing today 14 until the noon hour. 15 MR. LINK: Great. Thank you, Your Honor. 16 MR. SCAROLA: And there is a threshold 17 Binger issue, which my presentation addresses 18 that I provided to opposing counsel but have 19 not yet given to Your Honor. I can give it to 20 Your Honor now, if you'd like. 21 THE COURT: Sure. Thank you. 22 MR. SCAROLA: Thank you, sir. 23 THE COURT: All right. 24 MR. LINK: All right, are you ready, sir? 25 THE COURT: Yes, I am. Palm Beach Reporting Service, Inc. EFTA00804591  22 1 MR. LINK: Okay. Your Honor, I believe 2 there are two reasons why our motion should be 3 granted. One, I believe that our supplemental 4 exhibit list is in compliance with this Court's 5 order, and the order that I'm talking about, 6 Your Honor -- just left me. Hang on. It was 7 over here. There we go. 8 The order we're talking about is the 9 July 20th, 2017 order. That's the order that 10 set this case in December of last year, and 11 Your Honor moved that trial to March based on 12 our motion for a continuance when my law firm 13 came in and based on -- Your Honor's actual 14 ruling was that there were so many, 15 essentially, pretrial motions that required 16 days to get through that would either shorten 17 or lengthen the trial. 18 And -- Your Honor, may I approach? 19 THE COURT: Sure. 20 MR. LINK: This is a copy of the order, 21 and I believe that what we have done is in 22 compliance with this Court's order. 23 The second basis -- and we're going to 24 walk through the order. The second basis is 25 that, as Mr. Scarola said, using a Binger Palm Beach Reporting Service, Inc. EFTA00804592  23 1 analysis, if we were not in compliance with the 2 Court's order, these supplemental exhibits 3 should be allowed because there is, in fact, no 4 prejudice to the plaintiff in this case in 5 letting them come in. 6 THE COURT: The actual line of the uniform 7 order is "use of the exhibit or witness may be 8 allowed by the Court for good cause shown or to 9 prevent manifest injustice." And that is as it 10 relates to any exhibits provided after the 11 pretrial conference or the conference wherein 12 the parties are to prepare a pretrial 13 stipulation. 14 MR. LINK: Yes, sir. 15 THE COURT: And, essentially, after the -- 16 the witness lists have been, and exhibit lists 17 have already been disclosed. 18 MR. LINK: That is correct, Your Honor. 19 Except that your order in July 2017 allows the 20 parties to amend certain provisions of it 21 without the Court's permission. One of those 22 provisions, which is in -- is on page 3 under 23 paragraph G, is that the pretrial stipulation 24 allows the parties to supplement. 25 And here, what happened is we -- I'd like Palm Beach Reporting Service, Inc. EFTA00804593  24 1 to walk the Court through the timeline to see. 2 You entered the order, the parties were 3 complying with it. Okay? You've got exhibit 4 lists, you've got witness lists coming in, and 5 Mr. Scarola files a unilateral pretrial stip, 6 and that unilateral pretrial stip is very 7 important because it shows the difference, Your 8 Honor, in what Mr. Scarola -- 9 May I approach and hand the Court -- 10 THE COURT: Sure. 11 MR. LINK: What Mr. Scarola intended was 12 to follow this Court's order without exception, 13 which would have meant that there could be no 14 additional exhibits. 15 So Mr. Scarola's unilateral pretrial 16 stipulation contains no language that allows 17 the parties to supplement their exhibit list. 18 The pretrial stipulation that Mr. Scarola and I 19 negotiated -- 20 May I approach again, Your Honor? 21 THE COURT: Thank you. 22 MR. LINK: -- you will see is very 23 different. It changes that provision 24 dramatically. 25 And if Your Honor will turn in to the Palm Beach Reporting Service, Inc. EFTA00804594  25 1 pretrial stip, which is at the beginning on 2 page 12. 3 THE COURT: Okay. 4 MR. LINK: There's a material change to 5 the unilateral pretrial stipulation. The 6 parties agree -- 7 THE COURT: Hold on just a moment. 8 MR. LINK: Yes, sir. 9 THE COURT: It's on exhibit lists, 10 paragraph D? 11 MR. LINK: Yes, sir. 12 THE COURT: All right. 13 MR. LINK: So if you compare the language 14 that we negotiated verse the language in the 15 unilateral, you will see that the parties do 16 not waive their right to amend their exhibit 17 list. That's a substantial negotiated change 18 between counsel for the parties. 19 Your Honor, I know we talked about this a 20 few months ago, and you brought up Chief Judge 21 Melanie May's opinion, and there's also, at the 22 time, Chief Judge Cory Ciklin's opinion, where 23 they both say that where the parties agree in a 24 pretrial stipulation, that should be enforced. 25 It is the most important tool for getting Palm Beach Reporting Service, Inc. EFTA00804595  26 1 ready for trial. You can waive issues, you set 2 the facts to be determined or not determined, 3 and you can, as your court order permitted back 4 in July, agree to deviate from the exhibit 5 provisions of the standard pretrial order. And 6 we did. And, in fact, we both did. 7 Mr. Edwards, after the date passed for 8 exhibit lists, filed amended exhibit lists. 9 And we didn't object, because that's what we 10 agreed to. We filed amended exhibit lists. 11 They filed a second amended exhibit list. So 12 that the parties, consistent with their 13 negotiated agreement in the pretrial stip, 14 abided by it, both of us, Your Honor, and filed 15 amended exhibit disclosure and witness lists 16 pursuant to the pretrial stipulation. 17 Second, if you take a look in Tab A of the 18 pretrial stipulation, you'll see there's 19 Bradley Edwards' witness list, I'm sorry, 20 exhibit list. If you look at page 15, you will 21 see that Mr. Scarola included ten catchalls. 22 The next exhibit list is mine, that has, I 23 think, nine catchalls. So both sides, in 24 conjunction with our stipulated pretrial, 25 amended exhibit lists, and we both included Palm Beach Reporting Service, Inc. EFTA00804596  2 1 catchalls. 2 And I know that one of Mr. Scarola's 3 biggest complaints about our exhibit list was 4 that, Oh, my goodness, Mr. Link had catchalls. 5 We both did, Your Honor. Whether that makes it 6 right, I'm not saying. But I'm telling you 7 it's what the parties did consistent with what 8 we negotiated. 9 If you look at, Your Honor, Tab B, which 10 is our exhibit list with our nine catchalls, 11 you'll see on page 22 another sentence 12 incorporated in our exhibit list that says, 13 "Plaintiff/Counter-Defendant reserves his right 14 to supplement this exhibit list." Again, 15 consistent with what we negotiated in the 16 pretrial stipulation. 17 I don't believe that Your Honor has to go 18 to the Binger analysis where the parties, by 19 agreement, agree that you can supplement the 20 exhibit list. There is 21 THE COURT: Isn't this a little different 22 than what you were telling me yesterday I 23 should do? I have to employ the Binger 24 analysis? 25 MR. LINK: You have to employ the Binger Palm Beach Reporting Service, Inc. EFTA00804597 1 analysis, Your Honor, I believe for the 2 47 exhibits that we're going to get to at some 3 point. Because, those exhibits, once you go 4 through the in camera inspection, I think 5 were -- they could fall within this exhibit 6 list. And maybe you don't have to do Binger, 7 it's possible. But I've always thought of 8 those as different exhibits, frankly. 9 The exhibits that we're talking about now, 10 if the Court finds that our pretrial 11 stipulation does not govern our ability to 12 amend exhibit lists, and we are then dealing 13 with the issue of, okay, if we didn't comply 14 with the Court's order, can we get them in 15 anyway, that's a very simple Binger analysis, 16 that, as this Court well knows, just requires 17 you, mandates that you do the prejudice 18 analysis. 19 I'm suggesting as the first basis, and I 20 will now get to the second basis, that you need 21 not conduct Binger based on the parties' 22 agreement. 23 Now, in talking about Binger -- in talking 24 about Binger, Your Honor, there are three 25 categories of documents that are listed on our Palm Beach Reporting Service, Inc. EFTA00804598  29 1 exhibit list that this Court struck before the 2 March hearing. And Your Honor's ruling was, 3 essentially, we're starting trial on a Monday, 4 there were -- I can tell you the numbers, 5 because we reduced it greatly. 6 There were 360 different items, 700 7 different items, we have reduced that greatly 8 on our exhibit list. You've seen the ones, 9 we've cut them out and gone right to the core. 10 So in looking at the Binger analysis, there are 11 three categories. 12 Category number one are emails that are 13 from Brad Edwards and his team at the Rothstein 14 firm, which they voluntarily produced, which 15 are not the 47 on the privileged log, and which 16 they can have no prejudice to because they were 17 written or received by Mr. Edwards. There is 18 no need to redepose Mr. Edwards by Mr. Scarola, 19 because he never did depose him. I deposed 20 him. 21 He has his clients, he can talk to his 22 client about the emails. There is simply 23 nothing that needs to be done as it relates to 24 those emails. 25 So, for example, if Your Honor -- with Palm Beach Reporting Service, Inc. EFTA00804599  30 1 Your Honor's permission we have a book with all 2 of these exhibits, and I'd just like to show 3 you a few examples -- 4 THE COURT: Okay. 5 MR. LINK: -- if I might. 6 May I approach, Judge? 7 THE COURT: Yes. 8 MR. LINK: Thank you, sir. I know I'm 9 loading you with paper, but... 10 THE COURT: I really don't know what you 11 think I'm going to be able to do with these 12 thousands of documents that you're handing me 13 now, but I'll do the best I can. 14 MR. LINK: Yes, sir. I'm going to take 15 you to specific ones, so we can talk about 16 them. 17 THE COURT: I'm just looking for something 18 here. 19 MR. LINK: Is this okay to sit right here? 20 Can you reach it, Judge? 21 THE COURT: Yes, thank you. 22 Okay. Go ahead. 23 MS. ROCKENBACH: May I approach, Your 24 Honor, just to -- 25 MR. LINK: Tab 211. Palm Beach Reporting Service, Inc. EFTA00804600  31 1 THE COURT: Okay. Thank you. 2 MR. LINK: So this is an example of one 3 category of the exhibits that were listed. And 4 this is an email -- 5 THE COURT: What number is this? 6 MR. LINK: Tab 211. 7 THE COURT: I have that, but I'm talking 8 about what numbered exhibit are we talking 9 about corresponds -- 10 MR. LINK: That's it, 211. 11 THE COURT: 211? 12 MR. LINK: Yes, sir. 13 THE COURT: Thank you. I'm sorry. I 14 didn't realize that they correlated. 15 All right, thank you. 16 MR. LINK: Yes, sir. This is an email, 17 and if you will start at the bottom, it's an 18 email from Scott Rothstein to all staff telling 19 them that he's available to come talk to. And 20 you will see at the top there's an email from 21 Mr. Edwards to Russell Adler where he says, 22 "Mr. Edwards, do you want me to go talk to 23 him," meaning Rothstein, "about our Epstein 24 information today, or do you want to also be 25 involved and set up some other time?" So one Palm Beach Reporting Service, Inc. EFTA00804601  32 1 of the issues in this case is Mr. Rothstein's 2 involvement in the Epstein cases, that's one. 3 Two, under -- see, if I do this right, for 4 my appellate lawyer -- 90.608, Mr. Edwards 5 testified in his deposition, Your Honor, that 6 he spoke to Mr. Rothstein, he believed, on two 7 brief occasions, one in a restaurant in passing 8 where Mr. Rothstein said "Go get them," and 9 then he really had no -- Mr. Rothstein had no 10 involvement in the case, and Mr. Edwards had no 11 involvement with Mr. Rothstein. 12 This exhibit, among others, that we'll get 13 to when we get to the 47, go to credibility of 14 whether that testimony is true and what 15 involvement Mr. Rothstein had. 16 The second category -- sorry, Your 17 Honor -- let Your Honor finish reading. I was 18 going a little quick. 19 THE COURT: No, that's fine. 20 MR. LINK: The second category of 21 exhibits, if you turn to page 27 of the yellow 22 and blue. These are in yellow, Your Honor. 23 THE COURT: Okay. I'm with you. 24 MR. LINK: This category has to do with 25 public records of Mr. Edwards' three clients. Palm Beach Reporting Service, Inc. EFTA00804602  1 One of the issues now in this case, and I 2 want to make sure the Court understands the 3 timing, in November, the end of November, you 4 might remember, we had two days of hearing 5 where this Court made rulings that 6 significantly changed how both sides were going 7 to try the case. And one of the rulings that 8 this Court made was that Mr. Edwards would be 9 able to get on the stand and talk about his 10 three clients and how strong their cases were. 11 The public information that we found, we 12 started gathering after this hearing. We did 13 not look for it before. After this Court's 14 ruling, we did public record searches and found 15 information about the three clients of 16 Mr. Edwards, so that we would be prepared to 17 cross-examine him when he gets on the stand and 18 if he, in fact, says, 19 20 21 22 23 24 25 MR. SCAROLA: Excuse me. May I request Palm Beach Reporting Service, Inc. EFTA00804603  34 1 that we try to deal with these issues one at a 2 time? Just looking at the volume of materials, 3 it's going to be very difficult for me, and I 4 suggest probably for the Court, as well, to 5 keep track of each of the arguments, and it 6 would be better if we address them in the order 7 in which they're made. 8 THE COURT: All right. Well, let me -- go 9 ahead and finish this. There's only one email 10 thus far that's been identified, I presume to 11 be at issue here today in that chain, but... 12 MR. LINK: Yes. I was providing that 13 simply -- 14 THE COURT: You wanted to move on to this 15 because -- 16 MR. LINK: I want to cover the broad 17 topics. I assume at some point, Your Honor, 18 you may want to go through this book and look 19 at it. I didn't think in an hour and a half we 20 could cover every exhibit, so I want to give 21 you my broad argument and some examples as part 22 of my presentation. 23 THE COURT: All right. 24 MR. LINK: Okay? So if you turn to Tab 56 25 in the big -- I'm sorry, in the big binder of Palm Beach Reporting Service, Inc. EFTA00804604  1 exhibits -- 2 MR. VITALE: Which tab was that? 3 MR. LINK: 56. 4 THE COURT: All right. Yes, sir. 5 MR. LINK: You'll see this is an FBI 6 investigation or recording of a statement from 7 one of Mr. Edwards' clients. And one of the 8 things that Mr. Edwards, I believe, is going to 9 say -- I mean, honestly, Judge, I don't know 10 what I'll use until he gets on the stand, for 11 purposes of cross-examination. One of the 12 things he said is that Mr. Epstein is 13 responsible for -- these are strong cases 14 because he's responsible for all their anxiety 15 and troubles. 16 And if you look at the third paragraph, 17 she tells the FBI in life was 18 not going well during the time she was 19 providing Epstein with massages. She was 20 buying and taking drugs: Xanax, Lorcets, 21 Percocets. She stayed on pills, explained she 22 wanted to feel numb, 23 24 25 Palm Beach Reporting Service, Inc. EFTA00804605  1 2 3 4 5 6 There are 7 multiple criminal records for all three of 8 Mr. Edwards' clients. There are multiple 9 criminal records, some of them have done time, 10 some have been in drug rehab. One is an arrest 11 record for one of Mr. Edwards' clients where 12 13 14 15 16 All of these exhibits, Your Honor, go to 17 the strength that Mr. Edwards wants to get on 18 the stand and tell the jury, that that's why 19 there was not probable cause. These three 20 clients of his cases were strong. 21 You will remember the sentence in the 22 complaint that they focused on, and we had a 23 long discussion about this, because our view is 24 that you are not allowed in a malicious 25 prosecution action to cherry-pick a sentence. Palm Beach Reporting Service, Inc. EFTA00804606  1 You have to look at the time the complaint was 2 filed, what was known at that time. The 3 litigation privilege covers every sentence in 4 the complaint, otherwise, in every case we 5 would be flyspecking allegations to find the 6 one we couldn't prove to bring a malicious 7 prosecution action. 8 But the ruling this Court made, based on 9 this sentence that Mr. Scarola showed you, 10 which was that the Rothstein and litigation 11 team should have known that their three filed 12 cases were weak and had minimal value. Your 13 Honor ruled, at the end of November, that 14 Mr. Edwards could get on the stand and explain 15 that the cases were not weak, they were strong. 16 So this information that we have found and 17 have asked to add to the exhibit list goes 18 directly to the issue they injected into this 19 litigation, and this Court said they could 20 testify to, and because it's in the public 21 records under Binger, it can't cause prejudice. 22 THE COURT: Well, how much is in the 23 public record? 24 MR. LINK: A lot. 25 THE COURT: For example, this FBI Palm Beach Reporting Service, Inc. EFTA00804607  38 1 investigation, would -- I don't know if it's in 2 the public record because of the redactions 3 here, and... 4 MR. LINK: The arrest record -- 5 THE COURT: For example -- 6 MR. LINK: Yeah, the arrest records that 7 I'm talking about, I'll show you are in the 8 public record. And we can look at those. 9 If you turn to tab, for example, 446 in 10 the big book... 11 THE COURT: Okay. 12 MR. LINK: And you look, flip through a 13 few pages, a few of those exhibits. 14 MR. SCAROLA: I'm sorry, which tab, 15 Counsel? 16 MR. LINK: 446. 17 MR. SCAROLA: Thank you. 18 MR. LINK: And you look at the next few 19 exhibits. 20 THE COURT: These are photographs? 21 MR. LINK: Yes, sir. The photographs, 22 they're on the Internet, of two of Mr. Edwards' 23 clients. 24 THE COURT: Okay. The photographs of 25 these young women in bikinis, T-shirts -- Palm Beach Reporting Service, Inc. EFTA00804608  39 1 MR. LINK: Shirtless. 2 THE COURT: Well, shirtless, but with -- 3 MR. LINK: With coverup, yes, sir. 4 THE COURT: -- something covering up their 5 private areas. Okay. 6 MR. LINK: If you turn to Tab 462, you'll 7 find the public arrest record that I was 8 describing of one of Mr. Edwards' clients 9 10 11 THE COURT: I presume this is when this 12 person was an adult. 13 MR. LINK: Well, this was in 1988, this 14 one, in particular. 15 There are arrest records in here, and 16 incident reports, from when some of 17 18 19 20 THE COURT: Okay. Well, let's -- 21 MR. LINK: So this is the one --