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NOT A CERTIFIED COPY Filing# 80808824 E-Filed 11/14/2018 04:22:48 PM JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, V. SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiff. ________________ ./ IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 50-2009CA040800:XXXXMBAG COUNTER-DEFENDANT JEFFREY EPSTEIN'S RESPONSE IN OPPOSITION TO EDWARDS' MOTION TO STRIKE EPSTEIN'S MOTION FOR IN CAMERA INSPECTION OF 30 E-MAILS Counter-Defendant Jeffrey Epstein ("Epstein") responds in opposition to Counter-Plaintiff Bradley J. Edwards' ("Edwards") November 13, 2018, Motion to Strike Epstein's Motion for In Camera Inspection of30 E-Mails and states: INTRODUCTION Edwards knows only one path: hide and deflect from the truth. Pursuant to long- established Florida Supreme Court precedent, Epstein is required to articulate his "specific legal argument" in order to properly preserve it for appeal to the Fourth District Court of Appeal. This preservation is particularly necessary in light of this Court's recent ruling striking 126 of Epstein's trial exhibits, many of which were public records or already in Edwards' possession and which Epstein specifically identified and provided to Edwards more than eight months ago. With regard to the 30 e-mails for in camera review and this Court's ruling on procedure at the November 2, 2018 hearing, Epstein fully complied with this Court's oral ruling and written order-in both the FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 11/14/2018 04:22:48 PM NOT A CERTIFIED COPY spirit and letter of the law - by filing a motion for in camera inspection of a "generic quality" and leaving the "substantive discussion of those e-mails ... under seal by way of memorandum." This is precisely what was accomplished by Epstein. Disappointingly, Edwards prefers that Epstein be silenced from making any appellate record-which simply is not the law. Edwards' unmeritorious Motion to Strike must be denied. EPSTEIN'S COMPLIANCE WITH THE COURT'S NOVEMBER 2, 2018, HEARING After ruling that Epstein would not be allowed to use certain exhibits identified since March 2018 on his Clerk's Trial Exhibit List under a Binger 1 analysis, this Court raised the pending issue of the 47 e-mails that Edwards claims are privileged and Epstein's pending request for an in camera review. As to those documents, the Court found: . . . I think that they do have a bit of a different connotation and import as it relates to whether or not late-filed, because if they were contained in the 2010 [sic-2011] privilege log, it's very difficult to suggest that there would be prejudice as to knowledge on the part of those documents being potentially utilized. (11/2/18 Hearing Tr., 115:5-12.) 2 The Court then instructed the parties to submit briefing on the issue: So what I will need is the emails sent to my office under seal. I will be the only one to review those emails. What I then would need from you is the motion that's filed, and I don't know how there can be a viable discussion without discussing the contents of the emails in a setting that the memoranda is sent under seal, and for attorneys' eyes only. *** I think the best approach would be for a motion to be filed of a generic quality that does not mention any contents of these emails, but simply tees it up, so to speak, with the understanding on this record today that any substantive discussion of those emails will be done under seal by way of memorandum, and that will be done under seal and 1 Bingerv. King Pest Control, 401 So. 2d 1310 (Fla. 1981). 2 Excerpts of the November 2, 2018, Hearing Transcript are attached as Exhibit A. 2 NOT A CERTIFIED COPY will continue to be under seal, and will be filed under seal in case of a need for appellate review. So that is going to be the direction of the Court, that the motion be filed, but that the memorandum be sent under seal to this Court, hand-delivered to me, sealed. And the same response memorandum be sent to be under seal by Mr. Edwards' counsel a week later. (11/2/18 Hearing Tr., 120:17-25; 122:22-123:14.) This Court only limited Epstein to a motion "generic in nature" to the extent that the motion could not specifically quote any of the e-mails or specifically discuss their contents, which the motion most certainly did not do. However, this Court also recognized the need for Epstein's motion to "tee up" the argument and then provide the specific references to the e-mails in the sealed memorandum. The Court's oral ruling was reduced to a proposed written Order by Epstein's counsel, with one minor change by Edwards' counsel, and remained consistent with the oral ruling that any "specific" citations and references to the e-mails would be in the memorandum filed under seal. There can be no legitimate dispute - Epstein complied with the sealing of the memorandum that specifically cited to and quoted the e-mails. Edwards seems to take issue with the fact that Epstein fully (20 pages) and specifically (as required by the law) raised his legal arguments in the motion. Edwards' flawed argument avoids the obvious - Epstein never once cited or quoted a specific e-mail, despite how compelling a public argument each e-mail presents for relevance, and for no privilege or protection in light of Edwards' defective and misleading privilege log and Edwards' sworn testimony in this lawsuit. Rather, Epstein complied with Florida law by articulating his specific legal arguments as to why the e- mails are relevant, never had any attorney-client privilege, no longer have protection of work- product given Edwards' noncompliance with Florida Rules of Civil Procedure and a defective, if not worse, privilege log, as well as producing all of the 27,542 e-mails to an adversary, issue 3 NOT A CERTIFIED COPY injection (Edwards' sworn testimony) and the crime fraud exception found in the Florida Evidence Code. FLORIDA SUPREME COURT REQUIRES SPECIFIC LEGAL ARGUMENT FOR APPELLATE PRESERVATION Edwards' trial counsel knows the law, having been involved in at least one appeal addressing this legal tenet. See Eagleman v. Korzeniowski, 924 So. 2d 855, 860 (Fla. 4 th DCA 2006)("In order to be preserved for appellate review, the specific argument made on appeal must have been raised when the party objected in the trial court.") In fact, the Fourth District Court of Appeal concluded that, "[i]t defies logic for a party to expect to be able to take no position on an issue in the trial court and then take whatever position is most advantageous to it on appeal; a party must take some position below in order for this court to review how the trial court ruled on that position." Id. at 859. In Edwards' view of the law, Epstein should be damed ifhe does, damed if he does not. Had Epstein not articulated the specific legal bases in his motion, Edwards would have claimed "lack of preservation" on appeal! See Diaz v. Wells Fargo Bank, N.A., 189 So. 3d 279, 282 (Fla. 5 th DCA 2016)("To preserve an issue for appellate review, "the specific legal ground upon which a claim is based must be raised at trial.. .. ") citing Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010); Cadavieco v. Castle Key Ins. Co., 246 So. 3d 501 (Fla. 3d DCA 2018)(affirmed citing civil cases holding that in order to be preserved for appellate review, issue must be presented to lower court and the specific legal argument raised). Accordingly, Epstein complied with this Court's Order-and Florida law-by making his specific legal argument and being "generic" in his reference to the e-mails. Not once did Epstein quote or specifically reference an e-mail in his motion. In addition, Epstein did not say anything in his motion that has not already been said multiple times before in public filings. 4 NOT A CERTIFIED COPY