EFTA01111222.pdf

JEFFREY EPSTEIN, IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN Plaintiff, AND FOR PALM BEACH COUNTY, FLORIDA VS. SCOTT ROTHSTEIN, individually, CASE NO.: 502009CA040800XXXXMBAG and BRADLEY J. EDWARDS, individually. JUDGE: CROW Defendants. PLAINTIFF JEFFREY EPSTEIN'S MOTION FOR CLARIFICATION/RECONSIDERATION OF THIS COU RT'S ORDER DATED MAY 17, 2013 Plaintiff/Counter-Defendant Jeffrey Epstein ("Epstein") , by and through his undersigned counsel and pursuant to Rule 1.530 of the Florida Rules of Civil Procedure, hereby seeks clarification/reconsideration of this Cour t's Order dated May 17, 2013, in which the Court directs Epstein to produce a privilege log as to the requested items/information for which he asserted his Constitutional Privilege Against Self -Incrimination in response to Defendant/Counter Plaintiff Bradley Edwards's Net Worth Interr ogatories and Requests for Production (hereinafter "the Order"). In support thereof, Epste in states: SUMMARY OF PROCEEDINGS On February 22, 2013, Epstein filed his responses to Edwa rds's Net Worth Interrogatories and Request for Production. On February 25, 2013, in response, Edwards filed a Motion to Strike Untimely Objections to Financial Discovery. In that Motion, Edwards moved to strike all objections and privileges raised by Epstein except his Constitutional Privilege. On March 1 1, 2013, this Court entered its Order on Edwa rds's Motion in which it overruled all objections other than privilege: [Ole court heard argument of counsel, reviewed the court file, has reviewed the authorities counsel has cited, has reviewed the discovery along with the 1 EFTA01111222  objections filed on behalf of the Counter-Defe ndant . . . [t]he Counter- Defendant's Objections to Discovery other than privilege (including but not limited to constitutional guarantees under the V, VI and XIV Amendments, attorney/client privilege, work product privilege) are overruled. . . The Counter-Defendant shall not be required to list any documents he contends are privileged pursuant to the V, VI and XIV Amendments. March 11, 2013 Order on Counter-Plainly:Ps Motio n to Strike Untimely Objections to Financial Discovery, attached hereto as "Exhibit A" (emphasis added). In that Order, this Court explicitly, and correctly, ruled that Epstein shall not file a privilege log as to any documents he contends are Constitutionally Privileged. Edwards did not, and has not, challenged that portion of this Court's Order. However, the Order entered by the Court on May 17, 2013 appea rs to compel Epstein to create a privilege log as to those items/answers for which he asserted his Constitutional Privilege against Self-Incrimination. A true and correct copy of the May 17, 2013 Order is attached hereto as "Exhibit B." As such, Epstein requests that this Honorable Court clarify its May 17, 2013 ruling with respect to the Constitutional Privilege issue already adjudicated in its March 11, 2013 Order, or alternatively to reconsider its May 17, 2013 Order if it is, in fact, compelling Epstein to provide a privilege log with respect to those items /answers for which he asserted his Fifth Amendment Privilege against Self-Incriminatio n. ARGUMENT A motion for clarification is the equivalent of a motion for rehea ring. Kirby v. Speight. 217 So. 2d 871, 872 (Fla. 1st DCA 1969); Dambro v. Dambro, 900 So. 2d 724, 725- 26 (Fla. 4th DCA 2005). As such, a motion for clarification is filed in accor dance with Rule 1.530(6) of the Florida Rules of Civil Procedure. "The purpose of a Motio n for a Rehearing is to give the trial court an opportunity to consider matters which it failed to consider or 2 EFTA01111223  overlooked." Pingree v. Quaintance, 394 So. 2d 161, 162 (Fla. 1st DCA 1981). Here, Epste in is requesting that this Court issue another opinio n in which it more clearly delineates its ruling with respect to the privilege log and Epstein's asser ted Constitutional Privilege, as pursuant to the most recent Order it appears that Epstein is being forced to waive his Constitutional Privilege. The law is clear that a party may invoke his Fifth Amendment Privilege against Self- Incrimination if he has reasonable grounds to believe discovery answers would furnish a link in a chain of evidence needed to prove a crime against him. Rainerman v. Eagle Nat. Bank of Miami, 541 So. 2d 740 (Fla. 3d DCA 1989). Epstein's assertion of his Constitutional Privilege is "a fundamental principle." Piscotti v. Steph ens, 940 So. 2d 1217 (Fla. 4th DCA 2006): It need not be probable that a criminal prosecution will be brought or that the witness's answer will be introduced in a later prosecution ; the witness need only show a realistic possibility that the answers will be used against him. Id. at 1220 (quoting Magid v. Winter, 654 So. 2d 1037, 1039 (Fla. 4th DCA 1995)). Here, the mere act of providing information in a privilege log would constitute communicative testimony itself that is protected from discovery. Id. See also Wehling v. Columbia Broadcasting Sys., 608 F.2d 1084, 1086 (5th Cir. 1979) ("Eve n if the rules did not contain specific language exempting privileged information, it is clear that the Fifth Amendment would serve as a shield to any party who feared that complying with discovery would expose him to a risk of self-incrimination. The fact that the privilege is raised in a civil proceeding rather than a criminal prosecution does not deprive a party of its protection.") (citing Lefkowitz v. Cunningham, 431 U.S. 801, 805 (1977)). A witne ss invoking the privilege against self-incrimination is not required to establish that criminal prosecution is probable or 3 EFTA01111224  imminent; instead, the court must only be satisfied that there is a reasonable possibility that the witness' answer will be used against him. See In re Keller Financial Services of Florida, Inc., 259 B.R. 391 (Bkrtcy. M.D. Fla. 2000); see also Meek v. Dean Witter Reynolds, Inc.. 458 So. 2d 412 (Fla. 4th DCA 1984) (finding a witness need only show a realistic possibility that an answer to the question will be used against him or her). As demonstrated more fully below, Epstein has already met this burden. Epstein provided the following response to the Requests for Production for which he is asserting his Constitutional Privilege: This Request for Production requires the identification of the existence of detailed financial information which communicates statem ents of fact. Fisher v. United States, 425 U.S. 391, 410 (1976). "ITjhe act of production itself' may implicitly communicate "statements of fact" that are testim onial in nature. United States v. Hubbell, 530 U.S. 27, 35-36 (2000). I have a substantial and reasonable basis for concern that these statements of fact that are testimonial in nature could reasonably furnish a "link in the chain of evide nce" that could be used to prosecute me in future criminal proceedings. See Hoffman v. United States, 341 U.S. 479, 486 (1951). I cannot provide answers/responses to questions relating to my financial history and condition without waiving my Fifth, Sixth and Fourteenth Amendment rights as guara nteed by the United States Constitution. See Epstein's Responses to Edwards's Net Worth Discovery Request for Production. Epstein has both demonstrated and articulated a "substantial and reaso nable basis for concern" that the requested information could "form a link in the chain of evide nce" that could be used to prosecute him in criminal proceedings, both in his "privilege log" filed in response to the Court's March 11, 2013 Order, and by argument and proffer throu gh counsel at each hearing held by the Court on this issue. Specifically, Epstein's "substantial and reasonable basis for concern" derives from the fact that Edwards is actively and vigorously seeking to invalidate a Non-Prosecution Agreement entered into between Mr. Epste in and the United States Government (08-cv-80736 Doe v. United States of America). A portio n of the Government's 4 EFTA01111225  investigation, and the Non-Prosecution Agreement which Edwards seeks to invalidate, include allegations of financial crimes. As such, shoul d Edwards be successful his ardent quest to invalidate the Non-Prosecution Agreement entered into between Epstein and the United States, Epstein could face the prospect of future prosecution which could, according to the Government, include financial crimes. Therefore, Epstein must, and will continue to, assert to his rights as afforded to him by the Constitution. See Piscotti v. Stephens, 940 So. 2d 1217 (Fla. 4th DCA 2006); Urbanek v. Urbanek, 50 So. 3d 1246 (Fla. 4th DCA 2011). As this Court is aware, "[t]he Fifth Amendment privilege can be asserted in any proceeding, civil or criminal... in which the witness reaso nably believes that the information sought, or discoverable as a result of his testimony, could be used in a subsequent state or federal criminal proceeding." Kastigar v. U.S., 406 U.S. 441, 444-45, (1972). Moreover, "Nile privilege afforded not only extends to answers that would in themselves support a conviction...but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant." Hoffman v. U.S., 341 U.S. 479, 486 (1951). In the case at hand, Epstein was previously convicted and sentenced for certai n crimes that may "form the basis of his Fifth Amendment claims." Likewise, according to Edwards, Mr. Epstein may face future prosecution. Edwards's own allegations in his Fourth Amen ded Counterclaim support this assertion, as Edwards himself claims that Epstein is the target of inquiry with respect to additional charges stemming from the very core of facts for which he already stands convicted. Edwards is also vigorously seeking to overturn the Non- Prosecution Agree ment between Epstein and the United States Government, and has, on nume rous occasions, made allegations of future prosecution against Mr. Epstein. As such, it is irrefu table that Edwards's own pleadings in this case have proven Epstein's contention that he has a "substantial and 5 EFTA01111226  reasonable basis for concern" of future prosecution. Epstein has, therefore, properly asserted the Fifth Amendment in response to every question/re quest propounded by Edwards where an answer, if provided, could conceivably "furnish a link in the chain of evidence needed to prosecute the claimant." Accordingly, if the Cour t's May 17, 2013 Order is compelling Epstein to provide a privilege log with respect to his Const itutional Privileges it is, in essence, forcing Epstein to waive this privilege. See United States v. Doe, 465 U.S. 605, 612 (1984); People v. Traylor, 23 Cal App.3d 323, 330 (1972) ("If the witness were required to prove the hazards he would be compelled to surrender the very protec tion the constitutional privilege is designed to guarantee."). See also In re Rothstein Rosenfeld! Adler, P.A., 2011 WL 6067494, *2 (S.D. Fla. 2011) (the court accepted a proffer from witness Deborah Villegas's attorney regarding the possibility of future prosecution, and held that the witness was within her rights to assert her Constitutional Privileges). Finally, the Court's Order is unclear as to whether or not a privil ege log is required for Mr. Epstein's responses to the Net Worth Interrogatories. Howe ver, because responses to Interrogatories must be verified; sworn to under Oath, they are irrefutably testimonial in nature, and Epstein should not be compelled to provide a privil ege log for the responses for which he asserts his Fifth Amendment Privilege. Epstein assert ed Constitutional Privileges to Interrogatories Nos. 3 through 13 and 15, including all subparts, speci fically stating: This Interrogatory requires the provision of detailed financial information which communicates statements of fact. Fisher v. United States, 425 U.S. 391, 410 (1947). I have a substantial and reasonable basis for concern that these statements of fact that are testimonial in nature could reasonably furnish a "link in the chain of evidence" that could be used to prosecute me in criminal proceedings. See Henan v. United States, 341 U.S. 479, 486 (1951 ). I cannot provide answers/responses to questions relating to my financial histor y and condition without waiving my Fifth, Sixth and Fourteenth Amen dment rights as guaranteed by the United States Constitution. 6 EFTA01111227  As explained above, Epstein has both demonstrated and articulated a "substantial and reasonable basis for concern" that the requested information could "form a link in the chain of evidence" that could be used to prosecute him in criminal proceedings. Therefore, Epstein will, and must, continue to assert to his right to the Constitutio nal Privileges. See Piscoui v. Stephens, 940 So. 2d 1217 (Fla. 4th DCA 2006); Urbanek v. Urbanek, 50 So. 3d 1246 (Fla. 4th DCA 2011). CONCLUSION Accordingly, for all of the reasons delineated above and in reliance upon the applicable law cited herein, Jeffrey Epstein respectfully reque sts that this Court clarify or reconsider its Court Order dated May 17, 2013, and such other and further relief as this Court deems proper. WE HEREBY CERTIFY that a true and correct copy of the foregoing was served upon all parties listed below, via Electronic Service, this May 23, 2013. /s/ Tonja Haddad Coleman Tonja Haddad Coleman, Esq. Fla. Bar No.: 0176737 TONJA HADDAD, PA 315 SE 7th Street Suite 301 Fort Laude ale, Florida 33301 . . 7 EFTA01111228  Electronic Service List Jack Scarola, Esq. Searcy Denney Scarola et al. 2139 Palm Beach Lakes Blvd. West Palm Beach, FL 33409 Jack Goldberger, Esq. Atterbury, Goldberger, & Weiss, PA 250 Australian Ave. South Suite 1400 West Palm Beach, FL 33401 Marc Nurik, Esq. I East Broward Blvd. Suite 700 Fort Lauderdale. FL 33301 Bradley J. Edwards, Esq. Farmer Jaffe Weissing Edwards Fistos Lehrman 425 N Andrews Avenue Suite 2 Fort Lauderdale. Florida 33301 Fred Haddad, Esq. I Financial Plaza Suite 2612 Fort Lauderdale, FL 33301 EFTA01111229  IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL IN AND FOR PALM BEACH CIRCUIT OF FLORIDA COUNTY CIVIL DIVISION CASE NO.: 502009CA040800 XXXXMBAG JEFFREY EPSTEIN, Plaintiff, vs. SCOTT ROTHSTEIN, etc., et al., Defendants. ORDER ON COUNTER-PLAINTIFF'S MOTION TO STRIKE UNTIMELY OBJECTIONS TO FINANCIAL DISCOVERY THIS CAUSE came before the Court upon the Counter-Plaintiff's Motion to Strike Untimely Objections to Financial Discovery. The Court heard argument of counsel, reviewed the court file, has reviewed the authorities counsel has cited, has reviewed the discovery along with the objections filed on behalf of the Counter-Defendant. Based upon the foregoing, and after a thorough revie w of same, it is CONSIDERED, ORDERED AND ADJUDGED as follow s: The Counter-Defendant's Objections to Discovery other than privil ege (including but not limited to constitutional guarantees under the V, VI and XIV Amendments, attorney/client privilege, work product privilege, privacy privil ege under the Florida Constitution or any other applicable privilege) are overruled. However, as to any privileges other than a privilege against self-incrimination as guaranteed by the V, VI and XIV Amendments of the United States Constitution, the Counter-Defendant shall file a detailed privilege log outlining the documents and the applicable privilege. The Counter-Defendant shall not be required to list any documents he contends are EXHIBIT A EFTA01111230  Epstein a Rothstein, et al. Case No. 502009CA040800XXXXM RAG Order Page 2 privileged pursuant to the V, VI and XIV Amendme nts. The privilege log as well as more complete responses shall be filed within fifteen (15) days of the date of this Order. DONE AND ORDERED this It (llaay of Marc 013 at West Palm Beach, Palm Beach County, Florida. DAVID CIRCUIT COURT J Copy furnished: See attached list. EFTA01111231  IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 50-2009-CA-0408004OOOC-MBAG JEFFREY EPSTEIN, CIVIL DIVISION "AG" Plaintiff, v. SCOTT ROTHSTEIN, etc., et al., Defendant(s). ORDER DIRECTING PLAINTIFF TO PRODUCE A PRIVILEGE LOG FOR AN IN CAMERA REVIEW OF PLAINTIFF'S ASSE RTED PRIVILEGES (AND SETTING STATUS CONFERENCE THIS CAUSE came before the Court on Plaintiff/Counter- Defendant Jeffrey Epstein's (the "Plaintiff") Objections to Defendant/Counter-Plaintiff's Request for Production and Net Worth Interrogatories. This Court, having carefully reviewed the Plaintiff's objections and all applicable legal authority, and being otherwise fully advis ed in the premises does hereby determine as follows: BACKGROUND On March 12, 2013, this Court entered an Order requiring the Plaintiff to file a detailed privilege log in response to Defendant/Counter-Plaintiff Bradley Edwa rds' (the "Defendant") financial discovery requests for document production. The Order stated that the Plaintiff was not required to list any documents on the privilege log that he asserted were protected by his constitutional privilege against self-incrimination. The Plaintiff responded to this Cour t's Order by filing a privilege log wherein he asserted a Fifth Amendment privil ege against self- incrimination as to essentially every document request, as well as assert ing that many documents were protected by attorney-client privilege, accountant-client privilege, trade secret privilege, EXHIBITS EFTA01111232  work product privilege, and third party privacy rights. In addition to asserting the aforementioned privileges against the Defen dant's document production requests, the Plain tiff also asserted the same privileges against many of the Defendant's interrogatories. The Plaintiff's Fifth Amendment objections were based upon the assertion that the identification and certification of the existence of certai n documents would be self-incriminating. Because of the Plaintiff's assertion that he could not identify the requested documents, the Plaintiff did not provide to this Court a basis upon which to substantiate his non-constitutional claims of privilege. On April 15, 2013, the Defendant filed his Response to Epstein's Objections to Edwards' Request for Production and Net Worth Interrogato ries wherein he requested that this Court require a new privilege log for an in camera review to deter mine whether the Plaintiff's non-constitutional claims of privilege are valid. LEGAL ANALYSIS The Plaintiff has asserted a Fifth Amendment privilege against self-incrim ination as to essentially every request to produce documents and against the majo rity of the Defendant's interrogatory requests. Because the validity of the Plaintiff's Fifth Amen dment objections are based upon the nature of the underlying act of compulsion, the Plain tiff's objections are best divided into three categories: (A) document requests directed towards the Plain tiff personally, (B) document requests directed towards the Plaintiff as a custodian of business records, and (C) interrogatory requests. Accordingly, each of these categories is considered in turn. A. Fifth Amendment Privilege in the Context of the Plaintiff's Production of Documents as an Individual. The Plaintiff has responded to virtually every document request from the Defendant by asserting his Fifth Amendment privilege against self-incrimination. A litigant may assert, in the context of civil litigation, a Fifth Amendment privilege against self-incrimin ation as to 2 EFTA01111233  testimonial and communicative evid ence. See Fisher v. United States, 425 U.S . 391 (1976); Boyle v. Buck, 858 So. 2d 391, 392 -93 (Fla. 4th DCA 2003). With resp ect to the production of documents, however, the Fifth Ame ndment will not apply simply beca use the requested documents will incriminate the respond ent. See Fisher, 425 U.S. at 409-10. Instead, the Fifth Amendment shields a respondent from document production when the com pulsory act of production itself is equivalent to incr iminating testimonial evidence. See id. at 411-12. Before a court can consider whether the act of producing documents is equivalent to incriminating-testimony, a court must first determine whether the act of production resu lts in any testimony at all. See id. at 392-99. The United States Supreme Court considered circ umstances where the act of production was not testimonial in Fisher v. United States. Id. at 411-12. In Fisher, the requested documents consiste d of work papers belonging to an accountant but in the possession of the respondent-taxpayer. Id. at 395. The Court determined that the resp ondent- taxpayer's act of producing the documents was not testimonial because (1) the documents were not prepared by the taxpayer, (2) the doc uments were of the type typically created by accountants, (3) the documents had been crea ted voluntarily, and (4) the existence and loca tion of the requested documents were a foregone con clusion. Id. at 411. The Court considered the act of production in Fisher to be an act of surrend er, not an act of testimony. See id. at 41 I -12. The Supreme Court considered a different set of facts where the act of producing documents was testimonial in United States v. Hub bell. United States v. Hubbell, 530 U.S. 27 (2000). In Hubbell, the government requested ove r 13,000 pages worth of documents without knowing what the discovery request would produce . See id. at 41-42. The Court described the facts that influenced its decision to classify the respondent's production of documents as testimonial: 3 EFTA01111234  Given the breadth of the des by the subpoena, the col cription of the 11 categories of documents called for lection and production of the tantamount to answering a mater series of interrogatories asking ials demanded was the existence and locatio a witness to disclose n of particular documents descriptions. The assembly of fitting certain broad literally hundreds of pages of to a request for "any and all ma documents reflecting, referring terial in response direct or indirect sources of , or relating to any money or other things of val provided to" an individual or ue received by or me the functional equivalent of mbers of his family during a 3-year period . . . is the written interrogatory or a ser preparation of an answer to either a detailed ies of oral questions at a Entirely apart from the conten discovery deposition. ts of the 13,120 pages of mater produced in this case, it is ials that respondent undeniable that providing a cat documents fitting within any of alog of existing the 11 broadly worded subpoena provide a prosecutor with a "le categories could ad to incriminating evidence," chain ofevidence needed to or "a link in the prosecute. Id. Notably, the government argued in Hubbell that the responden t was a sophisticated businessesman and, like the acc ountant's working papers in Fishe r, it was expected that the respondent would have the typ e of tax and accounting documents it had requested. See id. at 44. The Court rejected this ana logy by stating that, unlike in Fis her, the government had no independent prior knowledge of the existence or whereabouts of the doc um ents produced by the respondent. See id. at 44-45 ("T he Gover nment cannot cure this deficien cy through the overbroad argument that a busine ss man such as the respondent wi ll always possess general business and tax records that will fall within the broad categories des cribed in this subpoena."). The Court noted that the nature of the testimony inherent in the act of production was the respondent's certification as to the exi stence, custody, control, and authe ntic ity of the documents. Id. at 32,37. The Supreme Court has recognized that determining whether an act of pro duction is incriminating necessarily depends up on case-specific facts and circumstance s. See Fisher, 425 U.S. at 410. In the instant case, the Defendant's requests for productio n var y in scope. Some of the Defendant's document requests are broad, which resemble the reques ts in Hubbell, and some 4 EFTA01111235  of the document requests are specific, which resemble the requ ests in Fisher. Further, some of the Defendant's document requ ests are of the type that the Plaintif f is certain to possess, as was the case in Fisher, while other document requests will likely gen erate an unknown result, as was the case in Hubbell. Thus. this Court finds that some of the Defend ant' s requests for production have a high probability of resulting in testimony on behalf of the Pla intiff and some of the requests for production have a low probability of resulting in testimony on behalf of the Plaintiff. Even if the Plaintiff's act of producti on does equate to testimony, howeve r, the Plaintiff must still show, via an in camera inspecti on, that the Plaintiff has reasonable cause to fear that the testimony inherent in the act of prod ucin g the documents would be self-incrimi nating. See Hoffman v. United States, 341 U.S. 479, 486 (1951); Austin v. Barnett Bank, 472 So. 2d 830, 830 (Fla. 4th DCA 1985). B. Fifth Amendment Privilege in the Con text of the Plaintiff's Production of Documents as a Custodian of Business Records. The Plaintiff has raised Fifth Amendment objections to document requests targeted towards business records in his possession. A corporation (or ot