1346.pdf

NOT A CERTIFIED COPY Filing# 73240164 E-Filed 06/07/2018 02:16:55 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 PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S RESPONSE IN OPPOSITION TO EDWARDS' MOTION FOR SANCTIONS FOR VIOLATION OF COURT ORDER AND THE INTERVENORS' JOINDER Plaintiff/Counter-Defendant Jeffrey Epstein ("Epstein") responds in opposition to Counter- Plaintiff Bradley J. Edwards' ("Edwards") April 3, 2018, Motion for Sanctions for Violation of Court Order1, and the lntervenors' April 7, 2018, Joinder and states: INTRODUCTION In order to justify his Motion for Sanctions, Edwards concocts a patently absurd construction of this Court's verbal ruling on March 8, 2018, asserting that Epstein was prohibited from referring, in any way. to the 27,000+ pages contained on the Fowler White CD. His claim is that Epstein violated this Court's ruling the four times Epstein "referenced" the documents at issue, in one filing with this Court and three filings with the Fourth District Court of Appeal. Edwards' Motion is just another attempt to derail an in camera review of documents wrongfully withheld by Edwards, which review is critical to ensure a fair and complete examination of all relevant 1 A written Order has not been issued on the Court's March 8, 2018, rulings. FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 06/07/2018 02:16:55 PM NOT A CERTIFIED COPY evidence in this case. Edwards wants to gag Epstein and prevent him from being able to seek appellate review concerning the Court's striking of the exhibits (a review which this Court expressly contemplated as part of its ruling) 2 or defend himself in the Bankruptcy Court proceedings initiated by Edwards. In addition, under a gag ruling, Edwards, himself, would be in violation of the Court's ruling by his reference to the e-mails in filings in this Court, the Appellate Court and the Bankruptcy Court. In fact, Epstein has taken numerous affirmative steps to ensure compliance with the Court's directives at the March 8, 2018 hearing. The disc is sealed, the 47 exhibits (also referred to as "e-mails") are sealed and no further dissemination by Epstein or his attorneys has occurred. And Epstein's general references to the e-mails in connection with requests to this Court and the Fourth District Court of Appeal for judicial relief certainly comply with the Court's rulings and provide no basis for sanctions. The Bankruptcy Court's November 2010 Agreed Order, issued by the Honorable Raymond B. Ray (the "November 2010 Agreed Order"), contains no confidentiality or non-disclosure provisions and does not, itself, prohibit the general references to the e-mails about which Edwards complains. The November 2010 Agreed Order merely described the procedure by which Fowler White would print copies of documents to be produced in response to Epstein's Subpoena directed to the Bankruptcy Trustee and directed Fowler White not to retain any copies of the documents contained on the disc or any images of the documents in the memories of its copiers. Whether or not Fowler White and/or Epstein complied with that directive is squarely and appropriately before the court that issued the Order - the United States Bankruptcy Court for the Southern District of Florida. 2See March 8, 2018, Afternoon Hearing Transcript, 62:6-12 (Court allowed Epstein to file the exhibits under seal to protect his appellate rights). (Exhibit A.) 2 NOT A CERTIFIED COPY Following a preliminary hearing on Edwards' Motion for an Order to Show Cause held on April 13, 2018 in the Bankruptcy Court, Judge Ray ordered discovery that is focused on the allegations of federal civil contempt relating to the alleged violations of the November 2010 Agreed Order. Specifically, Edwards may take the depositions of (1) Fowler White's representative about the chain of custody of the discovery documents; (2) Epstein about his knowledge or possession of the disc or documents pre-2018; and (3) Link & Rockenbach, PA's representative about the chain of custody of the disc. The Bankruptcy Court determined that its role is only to review whether Fowler White or Epstein retained any copies of the documents contained on the disc or any images of the documents in the memories of Fowler White's copiers. Issues pertaining to the relevance of the documents contained on the disc or the applicability of any privileges to those documents are well outside both the scope of the November 2010 Agreed Order and the Bankruptcy Court's current review. The 2018 Show Cause Order and Judge Ray's review of Fowler White's and Epstein's compliance with the November 2010 Agreed Order are now pending in the Bankruptcy Court, and those issues need not be heard a second time by this Court. Edwards' Motion focuses on the 27,000+ pages contained on the disc. However, this Court recognized that not all of the documents contained on the disc were subject to Edwards' claimed privilege and that, in fact, many thousands of pages from the disc have already been produced in the case (including more than 80 documents produced by Edwards that were listed on his privilege log). Thus, the Court expressly stated that its ruling was only applicable to the 47 3 exhibits that Edwards identified as privileged. (3/8/18 Aft. Tr. 76:8-21.) The Court made it clear that it was prohibiting any reference to or use of those exhibits at the trial. (3/18/18 Aft. Tr. 75:24-76:6.) 3 Edwards claimed it is 49 exhibits, but two of the Bates numbers he referenced were pages contained within another exhibit, making the total 4 7 exhibits which are in dispute. 3 NOT A CERTIFIED COPY This, of course, makes sense because the Court was not making, and has not made, a ruling as to whether any of the 4 7 exhibits are protected by any privilege. The Court expressly ruled only that the exhibits were untimely and the Court was not going to conduct an in camera review three days before trial. To date, the oral rulings made by this Court at the March 8, 2018, hearing have not been reduced to a written Order. To be clear, however, Epstein has fully complied with the Court's rulings. In fact, it was Epstein's current counsel who: (1) disclosed the chain of custody of the disc and the limited disclosure of documents to Epstein; (2) immediately cooperated and assisted Edwards in sealing docket entries 1242 and 1252; (3) filed Notices of Compliance setting forth the steps taken to comply with the Court's rulings; and (4) after the Fourth District Court of Appeal's stay was partially lifted, moved to file the disc and the 47 exhibits under seal and obtained an Agreed Order allowing the sealing. Epstein and his current counsel have completely complied with this Court's rulings regarding the disc and the 47 exhibits. Edwards' argument that this Court prohibited general references to even assertedly privileged documents in any context other than at trial is completely nonsensical. Even a privilege log required under Florida's Rules of Civil Procedure as a condition to withhold documents on the basis of privilege must sufficiently identify the specific documents withheld with enough detail to facilitate the evaluation of and challenges to the privileges asserted therein. TIG Ins. Corp. v. Johnson, 799 So. 2d 339 (Fla. 4th DCA 2001); Abbott Laboratories v. Alpha Therapeutic Corp., No. 97-C-1292, 2000 WL 1863543 (N.D. Ill. Dec. 14, 2000). Had the Court issued the expansive prohibition sought by Edwards, it would have effectively precluded Epstein from seeking an appellate review of the Court's rulings and defending himself in the Bankruptcy Court procee