1361.pdf

NOT A CERTIFIED COPY Filing# 75554430 E-Filed 07/26/2018 01 :15:40 PM JEFFREY EPSTEIN, Plaintif£/Counter-Defendant, -vs- SCOTT ROTHSTEIN, individually and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiffs. I -------------- IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA. CASE NO. 502009CA040800:XXXXMB SUPPLEMENTAL RESPONSE TO PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S MOTION FOR COURT TO DECLARE RELEVANCE AND NON- PRIVILEGED NATURE OF DOCUMENTS, AND REQUEST FOR ADDITIONAL LIMITED DISCOVERY, EVIDENTIARY HEARING AND APPOINTMENT OF SPECIAL MASTER AND THE SUPPLEMENT TO THAT MOTION Counter-Plaintiff, Bradley J. Edwards, by and through undersigned counsel, hereby files this Supplemental Response to Plaintif£/Counter-Defendant Jeffrey Epstein's Motion for Court to Declare Relevance and Non-Privileged Nature of Documents, and Request for Additional Limited Discovery, Evidentiary Hearing and Appointment of Special Master ("Motion to Declare Relevance") and the Supplement to that motion, and as grounds therefore states: INTRODUCTION This Court has already determined that Epstein may not admit into evidence or otherwise refer to the privileged documents in question. This Court's decision was based upon the fact that Epstein and his counsel had possession of the materials for years, in violation of a federal court order, yet failed to timely list them as exhibits, in violation of multiple court orders and rulings. Epstein also failed to seek a determination before the close of discovery as to the privileged nature 1 FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 07/26/2018 01: 15:40 PM NOT A CERTIFIED COPY of the documents, despite the fact that most of them were included on a privilege log filed in this Court in April 2012. Not one to take no for an answer, Epstein is back yet another bite at this already well- chewed apple. Epstein has raised no new issues here which should support a different result than this Court has already ordered. To the contrary, the instant Motion was pending when this Court made the decision to strike Epstein's amended exhibit list which included the documents in question. This Court heard significant argument on the issue before making its extensive, thoughtful ruling. There is absolutely no reason for this Court to spend any more time than it already has considering this issue. Epstein's Motion to Declare Relevance must be denied. RELEVANT FACTS Although this Court is familiar with the issue raised here as it already heard argument and ruled on it, Edwards includes a recitation of the relevant facts to remind this Court why it struck the late filed exhibits, including the privileged materials identified in Edwards's 2012 privilege log. The Discovery Orders Violated by Epstein On July 20, 2017, this Court entered its Order Specially Setting Trial, which set the case for trial beginning December 5, 2017. In its Order, the Court required that the Pre-Trial Stipulation include "each party's numbered list of trial exhibits with specific objections, if any, to schedules attached to the stipulation." (emphasis added). The Court made clear that the parties would be "strictly limited to exhibits ... disclosed ... on the schedules attached to the Pre-Trial Stipulation ... absent agreement specifically stated in the Pre-Trial Stipulation or order of the Court upon good cause shown." (emphasis added). Thus, the Court's July 20, 2017 Order limited the parties to only those trial exhibits that were specifically identified and disclosed on the Pre-Trial Stipulation. 2 NOT A CERTIFIED COPY In October and November 2017, the parties began exchanging exhibit lists and producing proposed exhibits in connection with the Court's Order. Epstein's Exhibit List listed as Exhibit #13, "miscellaneous," the broadest catch-all provision possible: All documents produced by any party or non-party in this matter. At the December 5, 2017 hearing, after continuing the trial until March at the request of Epstein, the Court instructed that any identified exhibits not previously produced must be provided to opposing counsel by no later than December 19, 2017. See, e.g!., (12/5/17 Tr. at 225-226). A copy of the transcript is attached at Exhibit A. The Court also cautioned that general "catch-all" exhibit categories would not be permitted and that, instead, the specific documents covered by such exhibits must be separately identified and produced. See, e.g., (12/5/17 Tr. at 223-225). The message to the parties was clear: trial by ambush would not be permitted. 1 On December 19, 2017, Epstein produced copies of certain listed exhibits pursuant to that directive. Epstein's Exhibit #13 contained twenty-seven (27) RRA emails. None of these emails were listed on Edwards's five (5) year old privilege log, discussed further below. On December 22, 2017, the parties filed the Pre-Trial Stipulation. Epstein's Exhibit List was attached to the Pre-Trial Stipulation. A copy of the Exhibit List Stipulation is attached as Exhibit B. Epstein's Exhibit #13 was comprised of the 27 emails that had been specifically identified and produced. Pursuant to the Court's December 5, 2017 ruling and the December 19, 2017 exhibit 1 The Court's oral ruling was memorialized on January 16, 2018, when the Court entered its Order on Epstein's Revised Omnibus Motion in Limine Section B (Edwards' Trial Exhibits). This Order required Edwards to produce all trial exhibits that had not already been produced by December 20, 2017 and to produce all specific exhibits to a general "catch-all" category by no later than January 5, 2018. Although the Order did not specifically require Epstein to do the same, the reason was straightforward: Epstein claimed that he already produced all specific trial exhibits on December 19, 2017. 3 NOT A CERTIFIED COPY exchange, Epstein was "strictly limited" to those 27 specific documents absent a showing of good cause, which would necessarily require the filing of some motion seeking relief from the Court. Throughout February 2018, Epstein began piecemeal producing additional proposed exhibits, in violation of the orders discussed above. Epstein's violation of the Court's orders culminated on March 2, 2018, with the eve-of-trial 2 production of 198 new emails, all illicitly obtained, under Exhibit #13, which included at least forty-nine ( 49) privileged emails that are listed on Edwards's April 2012 privilege log. On March 5, 2018, Epstein filed the instant Motion to Declare Relevance. 3 That same day, Edwards moved to strike Epstein's supplemental exhibits and to strike all exhibits and any reference to documents contained in Edwards's April 2012 privilege log. On March 8, 2017, this Court held a hearing on several outstanding motions. One issue addressed involved Epstein's late disclosure of the privileged documents. Edwards suggested that his motion to strike be addressed first because it could alleviate the need to delve into other issues related to Epstein's intended use of the privileged emails (3/8/18 PM Tr. pp. 3-7). A copy of the transcript is attached as Exhibit C. After extensive argument by counsel, the Court granted the motion to strike, finding that Epstein should have produced the documents in question and raised any issues relating to the privileged nature of the documents long before the already expired time for the production of exhibits. The Court explained: [T]hese materials were in the hands of Epstein's attorneys from the inception of the issue itself, and to now come to the Court with not five pages of documents to look at, but 27,000, or whatever that number is - it escapes me because of its shear mass - is impossible and is not going to be countenanced here. *** 2 Trial was set to begin on March 13, 2018. 3 Epstein filed a supplement to