1334.pdf

NOT A CERTIFIED COPY Filing# 71374586 E-Filed 04/27/2018 05:03:41 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 MOTION TO ALLOW AMENDMENT TO EXHIBIT LIST Plaintif:u'Counter-Defendant Jeffrey Epstein ("Epstein") respectfully requests that the Court allow him to amend his Exhibit List, and states: INTRODUCTION The resetting of this case for trial on Counter-Plaintiff Bradley J. Edwards' ("Edwards") severed Counterclaim will require a new trial order and provides ample time to permit Epstein to amend his Exhibit List and add the exhibits he produced to Edwards on February 2, February 16, and March 2, 2018, 1 which all fell into general categories previously disclosed. Edwards had knowledge of both the exhibits themselves and the content well before Epstein amended his Exhibit List on March 5, 2018 to identify each document individually and, therefore, Edwards cannot claim surprise or prejudice. For instance, the exhibits included documents produced in this 1 Epstein intends to substantially narrow the list of exhibits and will not be adding the "more than 700 exhibits" Edwards complained about. FILED: PALM BEACH COUNTY, FL, SHARON R. BOCK, CLERK, 04/27/2018 05:03:41 PM NOT A CERTIFIED COPY case, litigation Edwards was directly involved in, and public records, such as police reports and litigation involving Edwards' three clients, among other documents. RECORD FACTS 1. Pursuant to this Court's July 20, 2017, Order Specially Setting Jury Trial (D.E. 938), the deadline for the exchange of exhibit lists was 60 days prior to trial. At that time, trial was set on December 5, 2017, making the deadline October 6, 2017. 2. The July 20, 2017 Order also provided, in pertinent part: ADDITIONAL EXHIBITS, WITNESSES OR OBJECTIONS. At trial, the parties shall be strictly limited to exhibits and witnesses disclosed and objections reserved on the schedules attached to the Pre-Trial Stipulation prepared in accordance with paragraphs D and E, absent agreement specifically stated in the Pre-Trial Stipulation or order of the Court upon good cause shown. A party desiring to use an exhibit or witness discovered after counsel have conferred pursuant to paragraph D shall immediately furnish the Court and other counsel with a description of the exhibit ... , together with the reason for the late discovery of the exhibit or witness. Use of the exhibit or witness may be allowed by the Court for good cause shown or to prevent manifest injustice. (D.E. 938 at ,r G (emphasis added).) 3. Epstein's current trial counsel were retained after the October 6, 2017 deadline and, on November 6, 2017, in light of the uncertainty of what issues would be tried and the numerous outstanding evidentiary issues, moved for a continuance of the trial and to extend the pre-trial deadlines, including the deadline for allowing the parties to filed amended Exhibit Lists. (D.E. 1035.) Edwards opposed this request. (D.E. 1055.) 4. On November 14, 2017, the Court granted the continuance request and continued the special set trial to March 13, 2018. The Court's Order, however, did not address Epstein's request for an extension of the pre-trial deadlines. (D.E. 1057.) On November 16, 2017, Epstein amended his Exhibit List. (D.E. 1067.) 2 NOT A CERTIFIED COPY 5. On November 9, November 15 and December 7, 2017, after the deadline set by the Court's July 20, 2017, Trial Order and without leave of Court, Edwards filed amended Exhibit Lists as well. (D.E. 1043, 1062, 1109.) 6. Counsel sought clarification from the Court on November 27, 2017, regarding the disclosure cutoff ruling. The Court granted Edwards' Motion to Reconfirm the Existing Pre-Trial Deadlines because of his concern over additional discovery. The Court noted, however, that it would permit additional limited discovery upon further motion. (D.E. 1086.) 7. On November 29, December 5 and December 7, 2017, the parties participated in extensive special set hearings wherein the Court made rulings relating to the issues and evidence to be presented at trial. 8. The parties filed their Joint Pretrial Stipulation on December 22, 2017, attaching their last filed Exhibit Lists (Epstein's November 16, 2017, Exhibit List and Edwards' December 7, 2017, Exhibit List). (D.E. 1132.) In the Pretrial Stipulation, the parties agreed that they did not waive their right to amend their Exhibit Lists. Id. 9. On December 19, 2017, February 2, 2018, February 16, 2018 and March 2, 2018, Epstein made a rolling production to Edwards of his trial exhibits. Pursuant to the Clerk's pre- marking guidelines (Exhibit A), on March 5, 2018, Epstein served his Clerk's Trial Exhibit List, which identified each of the exhibits individually. (D.E. 1237.) These exhibits were comprised of the following: (a) exhibits already produced in this case; (b) exhibits concerning L.M., E.W. and Jane Doe ( the lntervenors/Edwards' three clients); ( c) exhibits relating to a defamation lawsuit Edwards filed in 2015 against Alan Dershowitz (one of Epstein's attorneys); (d) printouts from Edwards' current website and verdicts and judgments referenced on the website; (e) Edwards' property records; and (f) documents from the Crime Victims' Rights Act (CVRA) action. 3 NOT A CERTIFIED COPY 10. At the March 8, 2018, hearing, in response to Edwards' Motion to Strike Untimely Supplemental Exhibits, the Court found that the exhibits Epstein produced on February 2, February 16 and March 2, 2018, were untimely and could not be used at trial. While 47 of the exhibits are the subject of a request for an in camera review because of privilege claims asserted by Edwards and the lntervenors, L.M., E.W. and Jane Doe,2 the remaining exhibits consist of documents produced in this and the underlying cases and public records. 11. Now that no trial order is yet in place, and because, as fully explained below, Edwards cannot claim surprise by any of the additional exhibits and will not otherwise be prejudiced by Epstein's identification of the subject exhibits, Epstein requests permission to amend his Exhibit List to include a narrowed list of the previously disclosed exhibits and other exhibits Epstein deems appropriate. ARGUMENT Epstein respectfully requests an Order granting him permission to amend his Exhibit List and to revisit the Court's earlier ruling that the exhibits were untimely and cannot be used at trial. 3 The documents Epstein seeks to add are relevant, do not include any of the documents Edwards claims are privileged4, cannot come as any "surprise" to Edwards and will not prejudice Edwards in light of the timing of their disclosure. 2 In light of the pending request for an in camera review, the request for relief set forth in this Motion does not pertain to those 4 7 exhibits. 3 To date, the Court's rulings on that Motion have not been memorialized in a written order. 4 Epstein has filed a Motion for an in camera review of the 47 exhibits. (D.E. 1319, 1320.) 4 NOT A CERTIFIED COPY I. Amendment of Exhibit Lists is Timely Under the Circumstances and is Allowed Pursuant to the Parties' Joint Pretrial Stipulation. There is no trial order in place. However, amendments to the parties' Exhibit Lists are permissible pursuant to the Court's July 20, 2017 Trial Order, and the parties' December 22, 2017 Joint Pretrial Stipulation. The July 20, 2017 Order provided in pertinent part: ADDITIONAL EXHIBITS, WITNESSES OR OBJECTIONS. At trial, the parties shall be strictly limited to exhibits and witnesses disclosed and objections reserved on the schedules attached to the Pre-Trial