EFTA00801142.pdf

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA Case No. 502009CA040800XXXXMB JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, vs. SCOTT ROTHSTEIN, individually; BRADLEY EDWARDS, individually, Defendants/Counter-Plaintiffs. TRANSCRIPT OF PROCEEDINGS DATE TAKEN: Wednesday, August 22nd, 2018 TIME: 10:06 a.m. - 12:04 p.m. PLACE 205 N. Dixie Highway, Room 10D West Palm Beach, Florida BEFORE: Donald Hafele, Presiding Judge This cause came on to be heard at the time and place aforesaid, when and where the following proceedings were reported by: Sonja D. Hall Palm Beach Reporting Service, Inc. 1665 Palm Beach Lakes Boulevard, Suite 1001 West Palm Beach FL 33401 Palm Beach Reporting Service, Inc. EFTA00801142  L 1 2 APPEARANCES: 3 For Plaintiff/Counter-Defendant: 4 LINK & ROCKENBACH, P.A. 1555 Palm Beach Lakes Boulevard, Suite 301 5 West Palm Beach, FL 33401 By KARA BERARD ROCKENBACH, ESQUIRE 6 By SCOTT J. LINK, ESQUIRE 7 For Defendant/Counter-Plaintiff: 8 SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 9 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 10 By JACK SCAROLA, ESQUIRE By DAVID P. VITALE JR., ESQUIRE 11 12 For Jeffrey Epstein: 13 ATTERBURY, GOLDBERGER & WEISS, P.A. 250 Australian Ave. South, Suite 1400 14 West Palm Beach, FL 33401 By JACK A. GOLDBERGER, ESQUIRE 15 16 17 18 19 20 21 22 23 24 25 Palm Beach Reporting Service, Inc. EFTA00801143  1 THE COURT: Good morning. Welcome. We 2 are here -- I hoped that if I waited long 3 enough maybe it would be nothing. 4 MR. LINK: We have an update to what 5 you have. We are trying to force a 6 reduction in paperwork for the judiciary. 7 THE COURT: Thank you. 8 I have the August 20th letter. It's 9 the last letter I received from Mr. Link. 10 I did want to specially recognize the 11 Link and Rockenbach firm -- not that the 12 Searcy Denney firm didn't also do a good 13 job -- but you did a particularly good job 14 in organizing these materials. That really 15 makes a big difference when it comes to 16 preparing. So I thank you for taking that 17 extra time. I know it takes quite a bit of 18 time. 19 MR. SCAROLA: It's amazing what can 20 happen when you have a client who is able to 21 pay hourly fees. 22 MS. ROCKENBACH: Or a really diligent 23 paralegal who we appreciate. 24 THE COURT: I take it more as a matter 25 of respect for the Court in organizing the Palm Beach Reporting Service, Inc. EFTA00801144  4 1 material in such a way that it makes my job 2 a lot easier. 3 So for whatever reason it may have 4 happened, I appreciate the fact that it was 5 done. 6 So a couple of things. Have a seat. 7 Thank you all. When it comes to the 8 deposition excerpts and objections, I am 9 treating this case as I would any other case 10 in that respect, and that is that I don't 11 hear the questions and answers. I don't 12 hear arguments on the questions and answers 13 individually, meaning what I do during my 14 own time is, I will review the deposition 15 transcripts and I will rule accordingly, 16 meaning that I will go through the 17 deposition transcript, just like I would 18 live testimony at trial, and not treat it 19 any differently than we instruct the jury to 20 treat deposition testimony as if the witness 21 appeared at trial and considered as any 22 other evidence during the trial. 23 So accordingly, that will save some 24 time. If I do need argument on any 25 individual questions, similar to what we Palm Beach Reporting Service, Inc. EFTA00801145  5 1 would do in trial, I will call a sidebar. 2 In the setting that I am envisioning that I 3 do in other cases, it would be before the 4 jury comes out or at the close of the day, 5 where I will take the deposition home. I 6 will review the objected-to questions. And 7 as I said, I will announce my rulings, of 8 course, but only entertain argument as I see 9 necessary as, again, I do during and would 10 at the trial. 11 So that wouldn't be necessary to argue 12 during this round of hearings. I will call 13 a hearing and make time for it, if it's 14 necessary. 15 MR. LINK: Good morning. Your Honor, 16 Scott Link on behalf of Mr. Epstein. In 17 preparing for today and thinking about doing 18 the questions and the objections and looking 19 at our objections, frankly, I think they are 20 overdone. And we can save the Court some 21 time by redoing them, frankly, and 22 eliminating some of the objections and 23 streamlining it for the Court. 24 THE COURT: That's fine. If you would 25 like some time to do that, I will be more Palm Beach Reporting Service, Inc. EFTA00801146  1 than happy to allow a 20-day period for you 2 to streamline those, and that will be 3 helpful. Thank you. 4 MR. LINK: You're welcome, Judge. 5 THE COURT: So that's the way we will 6 take care of that aspect of it, so I don't 7 want anybody to worry about dealing with it 8 during this period of time. 9 My thinking is that if we work hard 10 today we can get this done today. I don't 11 think we will need additional time beyond 12 today. 13 Is your bankruptcy hearing still 14 scheduled for tomorrow? 15 MR. SCAROLA: No, Your Honor. The 16 bankruptcy hearing has been taken off as a 17 consequence of various health problems that 18 precluded us from completing the discovery 19 necessary before the bankruptcy hearing can 20 proceed. 21 The bankruptcy hearing is now set in 22 October. 23 THE COURT: Okay. Thanks. 24 Has Mr. Epstein's deposition been 25 taken? Palm Beach Reporting Service, Inc. EFTA00801147  7 1 MR. SCAROLA: No. 2 MR. LINK: It has not. 3 THE COURT: Has that been rescheduled? 4 MR. LINK: It has not. As part of the 5 bankruptcy proceeding, Your Honor, it's been 6 bumped, but I think we are in the process of 7 rescheduling it. 8 MR. SCAROLA: Judge Ray has implemented 9 the procedure that requires the exchange of 10 direct testimony by way of affidavit in 11 advance of the hearing. 12 There's also an exchange of exhibits. 13 And that could not be completed until the 14 depositions are taken. Those depositions 15 were postponed as a consequence of, as I 16 said, various health problems that resulted 17 in us not being able to move forward. 18 THE COURT: Thank you for that 19 information. 20 And as I mentioned, to the extent that 21 my rulings may be impacted by Judge Ray's 22 ultimate rulings, I do want to continue to 23 make that known to the parties, and we will 24 deal with that as necessary. 25 But again, as I said, I want to be Palm Beach Reporting Service, Inc. EFTA00801148  1 clear, I am not deferring to Judge Ray. I 2 am simply going to review whatever findings 3 that he may make pertaining to the issues 4 involving the dissemination and copying of 5 the subject disc involving the emails from 6 the Rothstein law firm, and want his input 7 as to the manner and methods by which that 8 material was, in fact if at all, 9 disseminated. 10 We know that there was some 11 dissemination, since Mr. Link and 12 Ms. Rockenbach have obtained the disc. But 13 where it went from there and in the interim 14 of where it may have been and who may have 15 seen it, would be something that I am 16 interested in. 17 My feeling is that Judge Ray would be 18 adequately handling that aspect since it was 19 his order that is allegedly being 20 challenged. 21 All right. So what do we want to do 22 first? I have here the issue of Edwards' 23 notice of filing deposition transcript 24 excerpts and discovery responses by Epstein 25 implicating the Fifth Amendment. Part of Palm Beach Reporting Service, Inc. EFTA00801149  9 1 that was heard on December 7th, 17, but not 2 completed. 3 Is that what we want to do first? 4 MS. ROCKENBACH: Your Honor, do you 5 mind if I approach? I have an updated 6 schedule for you. So there are two motions, 7 Judge, that we have taken off in the spirit 8 of the other motions that we took off. I 9 believe they are 20 and 21. I crossed them 10 off on there. 11 Item nine we have an agreed order. And 12 with the Court's permission -- it relates to 13 taking judicial notice for authenticity 14 purposes. I will walk that up. 15 MR. VITALE: Mr. Link, was that 20 and 16 22? 17 MR. LINK: I thought so. 18 MR. VITALE: I thought you said 21. 19 MR. LINK: Twenty and 22, Judge. I 20 marked that off on the last page. 21 THE COURT: And you marked off the 22 first one I just mentioned. 23 MR. LINK: I did. This was a different 24 one. 25 THE COURT: I read it, but I didn't Palm Beach Reporting Service, Inc. EFTA00801150  10 1 mention it. 2 MR. LINK: That's the agreed order. 3 And with the Court's permission, we 4 would like to address -- there's two items 5 that involve the Fifth Amendment. 6 Mr. Goldberg will be talking about those. 7 He has volunteered -- I don't know if he 8 volunteered, but he's sitting as the traffic 9 magistrate after lunch today, so if we could 10 take those up first before he rises to a 11 level of semi-importance, that would be 12 helpful. 13 MR. GOLDBERGER: I note the Court 14 laughing. 15 THE COURT: Off the record. 16 (A discussion was held off the record.) 17 THE COURT: Back on the record. Let me 18 orient myself, because the Palm Beach Post 19 didn't bring a photographer today, which I 20 was hoping, which is why I have this box 21 here. 22 You have your cell phone camera? Can 23 you take a picture of the box? 24 She'll indicate that the Judge had 25 boxes of material to review. Palm Beach Reporting Service, Inc. EFTA00801151  11 1 Anyway, nice to see you, Jane. Thank 2 you for being here with us as well. 3 Anyway, yeah, tell me where we are. 4 MR. LINK: Yes, Your Honor. That would 5 be item 11. Edwards's motion to compel 6 request for admission answers; and item 7 three, the first half of it. I think item 8 three will probably take longer than item 9 11. 10 THE COURT: What I have is three, 11 Edwards's notice of Epstein implicating the 12 Fifth Amendment and attorney-client 13 privilege. 14 MR. LINK: That's what we started on 15 and didn't finish. 16 THE COURT: On December 7th? 17 MR. LINK: Yes, Judge. 18 THE COURT: And the second one was item 19 11. 20 MR. LINK: Eleven, yes sir. Edwards's 21 motion to compel. 22 THE COURT: I got it. Great. 23 MR. LINK: Which one would Your Honor 24 like to start with? 25 THE COURT: I have reviewed thoroughly Palm Beach Reporting Service, Inc. EFTA00801152  12 1 item three, so I would rather start with 2 that. If it dovetails together, then I will 3 be better prepared for number 11. 4 MR. SCAROLA: Your Honor, excuse me. 5 May I begin with some brief preliminary 6 comments that I hope may be helpful? 7 THE COURT: Sure. 8 MR. SCAROLA: Thank you, Your Honor. 9 Your Honor, I have prepared an outline 10 of what we, from Mr. Edwards's perspective, 11 perceive to be the issues that need to be 12 addressed. You will note that the first of 13 those issues is, were the allegations filed 14 by Jeffrey Epstein against Brad Edwards 15 false. And clearly an essential element of 16 a malicious prosecution claim is the filing 17 of false allegations. 18 What appears beneath that letters A 19 through Z are direct quotes from the 20 complaint. These are -- 21 MR. LINK: Your Honor, may I interrupt 22 and object for just one moment please? 23 This is obviously an opening 24 statement-type presentation with the press 25 that is here to hear it. And as we talk Palm Beach Reporting Service, Inc. EFTA00801153  13 1 about the motions that we have prepared for, 2 if some of this relevant, the Court can hear 3 it. But the Court is very familiar with 4 this case. And I don't think that behooves 5 us for us both to stand up and make 6 press-like opening statements, Your Honor. 7 THE COURT: Well, I am not suggesting 8 anyone is pandering to the press, but I 9 don't really see the need to go through the 10 elements. I think that they can be 11 integrated with the arguments that you are 12 going to make in response to or in support 13 of the motions that have been made, so I'm 14 going to wait on this. 15 I want to conserve our time as best we 16 can and remind you that, again, this is but 17 one of over 1,500 files that I am handling, 18 which I have myriad amounts of work to do on 19 other cases that, unfortunately -- whether 20 by happenstance, luck or otherwise -- the 21 higher-profile cases seem to gravitate to 22 this division. So I have a lot of work to 23 do. 24 So I would prefer -- Mr. Scarola, while 25 I appreciate your preparation -- and this Palm Beach Reporting Service, Inc. EFTA00801154  14 1 will come in handy, I think, during the 2 respective arguments -- that we handle this 3 in a way that I've chosen, and that is, to 4 deal with the motions that are before me and 5 that are scheduled, and I presume to have 6 been, at least impliedly, agreed to by the 7 parties and by counsel. 8 So I am going to hold off, then, on any 9 type of introductory commentary and ask that 10 you integrate it with the motions that have 11 been brought. 12 MR. SCAROLA: Yes, sir. I would only 13 point out to the Court it was not my 14 intention to read this to Your Honor, nor to 15 make public statements about it. But one of 16 the principal concerns that Your Honor 17 expressed during the lengthy hearing that we 18 began on this motion, but did not finish, is 19 addressing the relevance of the questions 20 that were asked. 21 THE COURT: I'm aware. 22 MR. SCAROLA: And in that spirit, I 23 thought it would be helpful if we identified 24 specifically each of the elements that will 25 be the subject of dispute at the upcoming Palm Beach Reporting Service, Inc. EFTA00801155  15 1 trial. 2 And that's what this does. It simply 3 outlines the issues that will be addressed 4 by the Court and by the jury. And I thought 5 that it would be helpful if we all had this 6 in front of us. If there's some 7 disagreement about it, that that 8 disagreement be addressed so that we are 9 working with a common understanding of what 10 this trial is going to be about. 11 So with that -- and that's the only 12 preface I will make -- I have given it to 13 Your Honor for whatever value it may have. 14 THE COURT: Thank you again. 15 All right, Mr. Goldberger, let's go 16 ahead and start with the issue regarding the 17 Fifth Amendment and the attorney-client 18 privileges. 19 MR. GOLDBERGER: I'm seeking some 20 clarification as to whether Mr. Scarola and 21 his team are objecting to our invocation of 22 the Fifth Amendment on any of these 23 questions that are contained in the motion. 24 That's my role here today, if someone 25 is contesting whether we can invoke the Palm Beach Reporting Service, Inc. EFTA00801156  16 1 Fifth Amendment or not, to explain why we 2 are so doing. 3 I'm not sure -- there are other 4 objections to the deposition questions. Of 5 course, I am only going to take those up as 6 you just indicated you would. 7 THE COURT: Why don't I shape the issue 8 as I now understand it and ask Mr. Scarola 9 for a brief commentary in that regard. 10 There has been a stipulation filed that 11 Mr. Epstein will not be attending nor 12 testifying at trial, as I understand it. 13 MR. LINK: That's correct, Judge. 14 THE COURT: So with that in mind, this 15 issue becomes one of direct evidence as 16 opposed to utilizing it in the form of 17 impeachment. 18 So the landscape has been manifested by 19 Mr. Epstein's decision in that respect. 20 Mr. Scarola, your position, please, 21 briefly. 22 MR. LINK: Your Honor, can I just 23 clarify for one second? 24 THE COURT: Sure. 25 MR. LINK: And it's because of the Palm Beach Reporting Service, Inc. EFTA00801157  17 1 nuance of the severed trial. Our notice is 2 he won't be testifying in the severed trial, 3 Mr. Edwards's claims against him, but did 4 not address his claims against 5 Mr. Rothstein. 6 THE COURT: Right. I'm talking now 7 about the trial that's set here that I'm 8 understanding to be only the case brought by 9 Mr. Edwards against Mr. Epstein on the 10 malicious prosecution claim. 11 MR. LINK: That's exactly right, Judge. 12 THE COURT: That's what we will be 13 talking about throughout the process, so 14 that there's no confusion, unless otherwise. 15 All right, Mr. Scarola, your 16 intentions. 17 MR. SCAROLA: Yes, sir, Your Honor. 18 Your Honor referred to this as a 19 stipulation. And I want to make sure 20 that -- 21 THE COURT: I will use the term 22 declaration. 23 MR. SCAROLA: Thank you, sir. I think 24 that that's an important clarification. We 25 understand that a declaration has been made Palm Beach Reporting Service, Inc. EFTA00801158  1 that Mr. Epstein will neither voluntarily 2 attend nor voluntarily testify. 3 That does not preclude us from choosing 4 to call him, noticing his appearance and 5 choosing to call him, if we want to do that. 6 That is not a decision that has yet been 7 made, although, I want to be sure that it's 8 understood that we have that right and may 9 choose to exercise it. I don't know that we 10 will. 11 The direct response to Mr. Goldberger's 12 question as to whether we are contesting 13 Mr. Epstein's right to assert his Fifth 14 Amendment privilege, we recognize the fact 15 that Mr. Epstein remains in criminal 16 jeopardy. Mr. Epstein does have a Fifth 17 Amendment right as a consequence of 18 remaining in criminal jeopardy. So we do 19 not contest his ability to assert his Fifth 20 Amendment privilege. 21 That may not be appropriate in 22 particular circumstances. But generally, he 23 has a Fifth Amendment right. 24 MR. GOLDBERGER: So with that in 25 mind -- if there's a specific question that Palm Beach Reporting Service, Inc. EFTA00801159  19 1 was asked -- I think we are up to the 2 January 25th, 2012 deposition -- if there is 3 a specific question that Counsel suggests 4 that Mr. Epstein did not have a right to 5 invoke his Fifth Amendment privilege, I 6 could address that particular question at 7 this time. 8 THE COURT: No. I don't think that 9 Mr. Scarola is questioning that. I think 10 that what his intention is going to be, 11 without him saying it directly -- but if I'm 12 not letting the cat out of the bag -- is 13 that there's definitely going to be the 14 utilization of this deposition testimony 15 before the jury with the time-permitting 16 utilization of the Fifth Amendment and other 17 privileges that are asserted. 18 That is in line with the case law that 19 says if someone is going to maintain their 20 Fifth Amendment privilege, that the Court 21 can wait until jeopardy is no longer 22 attaching and hence that information can be 23 disclosed to the jury and the jury can use 24 it any way they see fit. 25 MR. GOLDBERGER: I think we all Palm Beach Reporting Service, Inc. EFTA00801160  20 1 understand exactly that's the playing field. 2 There may or may not be an adverse 3 inference, depending on how the Court rules 4 on what comes out of the invocation. I 5 think we are all kind of saying the same 6 thing at this point. He is going to invoke 7 his Fifth Amendment privileges. 8 THE COURT: To be honest with you, when 9 I was reading this, it didn't really give me 10 much to chew on, because it just -- it just 11 relates the objections, and it doesn't 12 suggest to me whether or not you want me to 13 rule on anything having to do with this. It 14 just sets forth everything that's in here. 15 You know, I don't know what you want me 16 to say. We were in a different posture 17 before, because there had been no 18 declaration of Mr. Epstein not going to 19 testify. 20 So, frankly, until I happen to notice 21 it in the press, I had no idea that he had 22 no plans to be here. That was never 23 disclosed to me, and I didn't have any 24 inkling that that was going to happen. 25 So at this stage, we are at a much Palm Beach Reporting Service, Inc. EFTA00801161  21 1 different posture, because, again, my false 2 assumption that he was going to be 3 testifying. 4 At this point, all that's really in 5 front of me is a regurgitation of the 6 selected portions of his deposition and, I 7 believe, interrogatories as well, if I 8 remember correctly -- interrogatories and 9 interrogatory answers that Mr. Scarola, I 10 believe, is going to use and publish to the 11 jury. And there needs to be a ruling as to 12 adverse inference, but I don't have that 13 here in front of me. 14 MR. GOLDBERGER: Yes. If, in fact, 15 someone is saying, Hey, Mr. Epstein, you did 16 not have the right to invoke your Fifth 17 Amendment privilege for this particular 18 question, this interrogatory, this request 19 for admission, then I would be happy to 20 address that. 21 It is what it is right now. He has 22 invoked his Fifth Amendment privileges and 23 the Court is going to have to make rulings 24 as to what effect that is. 25 MR. LINK: Your Honor, if I may, I Palm Beach Reporting Service, Inc. EFTA00801162  22 1 think if you look at the other motion that I 2 identified, the request -- the motion on the 3 request for admissions where they're moving 4 to compel answers, where the objections to 5 the request to admission is the Fifth 6 Amendment objection -- I think that Your 7 Honor is in a slightly different posture 8 than where we are at today. 9 I think with the Court's instruction to 10 us earlier, everything that is contained in 11 binder three is subject to the Court's 12 review to determine whether the 13 objections -- which include, by the way, 14 Your Honor, relevance and 403 for some of 15 the interrogatories that talk about various 16 activities that we don't think are relevant 17 to the proceeding. But I think these all 18 fit within that category of Your Honor's 19 study time, frankly, other than item three. 20 THE COURT: I mean, I read it. And I 21 was excepting something to be at the end 22 that says we want a ruling on something. 23 But, again, like I said, it was just 24 and I don't mean to use the word 25 regurgitation in a pejorative manner. I'm Palm Beach Reporting Service, Inc. EFTA00801163  23 1 just saying that that's basically all it 2 was. 3 And it's a notice of filing deposition 4 transcript excerpts by Mr. Scarola -- by 5 Mr. Edwards's and Mr. Scarola's office. 6 MR. SCAROLA: Your Honor, the 7 procedural history is that the issues with 8 regard to assertion of Fifth Amendment 9 privilege were brought up before Your Honor, 10 and Your Honor directed us to identify each 11 of those areas where the Fifth Amendment 12 privilege was asserted with the anticipated 13 opportunity for the Court to rule in advance 14 as to whether these assertions of privilege 15 related to material that Your Honor 16 considered to be relevant to the issues that 17 are being presented before the jury, whether 18 that relevance is outweighed by some 19 prejudicial value, and -- and the extent to 20 which the assertions of privilege will give 21 rise to an adverse inference. 22 And Your Honor has, in fact, ruled 23 repeatedly that not only are specific 24 questions relevant, material and admissible, 25 but that the assertion of the Fifth Palm Beach Reporting Service, Inc. EFTA00801164  24 1 Amendment privilege will give rise to an 2 adverse inference. 3 You directed us to consider a jury 4 instruction that would be given in 5 connection with that assertion. And we have 6 prepared such an instruction and submitted 7 it to the Court. I will be happy to provide 8 Your Honor with another copy of that. 9 But it follows the mandate of the 10 Baxter decision, which basically says you 11 cannot prove an element of your civil claim 12 based solely upon an adverse inference 13 arising from a Fifth Amendment privilege 14 assertion. 15 However, the Fifth Amendment privilege 16 assertion can give rise to an adverse 17 inference that is considered in connection 18 with other evidence presented in order to 19 determine whether that element has been 20 satisfied in the proof of the claim. 21 So that's exactly what our instruction 22 says. I will pull that out and provide it 23 to Your Honor, because it might be helpful 24 to have that in front of you as well. 25 THE COURT: Thank you. I mean, I had a Palm Beach Reporting Service, Inc. EFTA00801165  25 1 lot of transcripts to read. I didn't see 2 the transcript relating to this particular 3 prior hearing so -- 4 MR. LINK: Your Honor, could I -- 5 THE COURT: I didn't recall exactly how 6 far we got on it. 7 MR. LINK: I believe we actually 8 submitted competing -- 9 MR. GOLDBERGER: I'm not sure of that, 10 quite honestly. I just asked Mr. Scarola. 11 He does not think we submitted -- 12 MR. LINK: In any event, we are not in 13 disagreement, Your Honor. I think we may 14 have had a change to it. But I don't 15 remember, frankly at this point, if we 16 agreed on what the change will be. But I 17 certainly agree that the Court ruled that 18 you were going to give an instruction and -- 19 THE COURT: I did. That, I recall. 20 MR. LINK: -- then you will make that 21 decision. 22 I think what the Court has said is 23 absolutely true. What we are missing at 24 this point is for the Court to review, for 25 example, the interrogatory questions and Palm Beach Reporting Service, Inc. EFTA00801166  26 1 determine whether our other objections 2 based on relevancy and 403 and other 3 things -- if you sustain those, then the 4 Fifth Amendment privilege doesn't come into 5 play. 6 The Fifth Amendment privilege will only 7 come into play once the Court makes a 8 determination on the depo transcripts that 9 you have indicated how you will do it. I 10 suggest interrogatories and request for 11 admissions follow the same pattern, or we 12 can argue them. 13 But the one motion, Your Honor, is 14 slightly different. But I think everything 15 in that binder that Mr. Scarola sent to you 16 fits within the category of he's not 17 contesting our ability to say Fifth 18 Amendment. It's our other objections that 19 the Court must rule upon. 20 THE COURT: That's fine. So let's -- 21 as long as I'm oriented with what you want, 22 I'm glad to help you. It's just that if you 23 look through item number three, it really 24 doesn't say anything other than refer to -- 25 and outline the different excerpts and the Palm Beach Reporting Service, Inc. EFTA00801167  2 1 interrogatories as to where the Fifth 2 Amendment and other privileges and other 3 objections were asserted. 4 MR. SCAROLA: Your Honor, there is one 5 area where we do not believe the assertion 6 of the Fifth Amendment privilege is 7 appropriate, and that relates to 8 Mr. Epstein's response to our requests for 9 admissions concerning his filings with the 10 New York State sex offender registration. 11 There clearly is no Fifth Amendment 12 privilege with respect to matters that 13 Mr. Epstein has openly and publicly 14 acknowledged. That is not a proper 15 assertion of privilege. 16 His response with regard to the 17 authenticity of that filing is clearly 18 evasive. He should be compelled to admit 19 that it is authentic or deny it, and we will 20 go to New York and we will take a deposition 21 to establish the authenticity of that 22 document. And he cannot deny having made 23 these admissions to the state of New York. 24 He cannot deny a requests for admission on 25 the basis of Fifth Amendment privilege. Palm Beach Reporting Service, Inc. EFTA00801168  1 That's been waived. 2 THE COURT: Let not get off on 3 tangents. That's number 11. I want to 4 start with number three and where we left 5 off so I can finish the rulings as to the 6 interrogatories and the deposition 7 testimony. We will get to number 11 right 8 after we finish number three. 9 MR. SCAROLA: We are on page 24, then, 10 Your Honor, of the notice of filing, which 11 delineates the specific questions and 12 answers where Fifth Amendment privilege was 13 asserted. This relates to the deposition of 14 January 25, 2012. 15 MR. GOLDBERGER: Your Honor, if I 16 understand the Court's ruling earlier today, 17 you are not going to deal with 403 18 objections, you're not going to deal with 19 relevance. You only want to deal with -- 20 THE COURT: No. I'm going to deal with 21 everything. 22 MR. GOLDBERGER: Okay, fine. 23 THE COURT: What I mentioned earlier is 24 that, in the generic deposition -- and 25 nothing here is generic -- what I was going Palm Beach Reporting Service, Inc. EFTA00801169  29 1 to say is, in the usual and customary 2 deposition designations and objections, I 3 will do that on my own time, similar to what 4 I do during trial, which is usually when I 5 am confronted with materials, I take those 6 home or I will do that, if I have some time, 7 in the office. And I will rule on those and 8 will announce my rulings to you at a 9 separate hearing. And if I need any 10 argument as to individual questions or 11 objections, I will be glad to entertain it. 12 There may be instances where you will 13 ask me to -- for further argument and I will 14 decline, as I would in a trial setting. But 15 that's what I was talking about, 16 generically. Not this. 17 So let's go back to where we were then. 18 You said the -- we have dealt with the 19 March 17th, 2010 deposition. We are on -- 20 MR. GOLDBERGER: Heading two, the 21 January 25th, 2012 deposition. 22 MR. SCAROLA: The page numbers are in 23 the upper-left-hand corner. 24 THE COURT: Which page is it? 25 MR. SCAROLA: It's page 24 of 36. Palm Beach Reporting Service, Inc. EFTA00801170  30 1 THE COURT: All right. I found it. 2 Thank you. 3 So we have, then -- we go to -- on page 4 eight; is that correct? 5 MR. GOLDBERGER: Yes, Your Honor. 6 THE COURT: The first one is, quote, 7 Did you, in fact, commit those acts? 8 The preceding questions are, quote, 9 Have you been convicted of a crime? 10 Answer: "Yes." 11 Question: "What was the crime of which 12 you were convicted?" 13 Answer: "Two counts. One is soliciting 14 prostitution and procuring a minor for 15 prostitution." 16 Question: "Did you, in fact, commit 17 these acts?" 18 Mr. Goldberger invokes the Fifth 19 Amendment privilege and Mr. Epstein follows 20 by invoking the same. 21 MR. GOLDBERGER: We continue to invoke 22 our Fifth Amendment privileges, Your Honor. 23 As Mr. Scarola set forth when he was 24 addressing the Court, we are in jeopardy on 25 potential -- Palm Beach Reporting Service, Inc. EFTA00801171  1 THE COURT: I'm not questioning that. 2 MR. LINK: The objection was relevance 3 and 403 prejudice to that question. 4 THE COURT: The objection is overruled. 5 Those objections are overruled. 6 MR. GOLDBERGER: Your Honor, however 7 for the sake of when this case is presented 8 to the jury, that same question was asked in 9 the first deposition and the Court ruled on 10 that in our first hearing. 11 THE COURT: I am not going to allow 12 repetition, just so the record is clear. I 13 don't anticipate experienced counsel 14 repeating the same information, even if it 15 was taken in two different depositions. 16 If there were different answers, then 17 it would be a different story. Same 18 invocation, I don't expect repetition. 19 MR. LINK: If Your Honor looks at the 20 next series of questions and answers through 21 the next page, we have the same exact 22 objections, Your Honor, of relevance and 403 23 prejudicial, if that helps you take a look 24 and rule. 25 MR. GOLDBERGER: And at a prior Palm Beach Reporting Service, Inc. EFTA00801172  32 1 hearing, Your Honor sustained the objection 2 based on the fact that it was limited to 3 three prior victims. 4 Your Honor said dealing with the three 5 named victims, you would overrule the 6 objection. But you sustained it on page 109 7 as of our last hearing. 8 THE COURT: Okay. Now, the first two 9 questions, the objections as to relevancy 10 and prejudice versus probative would be 11 sustained. 12 As to question, quote, Who is the 13 prostitute that you solicited for 14 prostitution with respect to the claim on 15 which you were convicted? And quote, Who is 16 the minor that you solicited for 17 prostitution with respect to the claim in 18 which you pled guilty. Those objections are 19 overruled. 20 However, the invocation of the Fifth 21 Amendment, which is subsumed in the answer, 22 would be permitted. And hence, it would 23 simply be responded to as, quote, I am going 24 invoke my Fifth Amendment right to those 25 questions. Palm Beach Reporting Service, Inc. EFTA00801173  1 Page 12, line 16. 2 Question: "Where was it that you 3 solicited" -- strike that. 4 "Where was it that you solicited for 5 prostitution the matter in the matter you 6 pled guilty?" 7 I am reading that verbatim. I don't 8 understand the question. 9 MR. SCAROLA: It's asking for the 10 location of that offense, Your Honor. 11 THE COURT: The objection is sustained 12 for relevance. 13 Next question. "When was it that you 14 solicited the prostitution in the manner in 15 which you pled guilty?" 16 I sustain the objection on relevancy 17 grounds. 18 Question -- the next -- "Have you ever 19 discussed your sex-related arrest or 20 conviction with any reporter or news media 21 representative?" 22 I'm also going to sustain as 23 irrelevant. 24 MR. SCAROLA: May I be heard with 25 regard to that one? Palm Beach Reporting Service, Inc. EFTA00801174  34 1 THE COURT: Sure. Are you going to 2 tell me something to do with the New York 3 Post article? 4 MR. SCAROLA: Yes, sir. I am going to 5 tell you that. And I'm also going to tell 6 you that it is clearly a question reasonably 7 calculated to lead to the discovery of 8 admissible evidence. If he -- and to 9 determine the validity of the Fifth 10 Amendment assertions. 11 If he is making statements to reporters 12 about these matters, we are entitled to find 13 out who it was he spoke to and what he said, 14 and to make a determination as to whether 15 what he said constitutes a waiver of Fifth 16 Amendment privilege. So I suggest to you 17 that it clearly is reasonably calculated to 18 lead to the discovery of admissible 19 evidence. 20 The assertion of the Fifth Amendment 21 right cuts off our ability to do that. We 22 should be able to point that out to the 23 jury. 24 THE COURT: This is not a motion to 25 compel. I am making ruling as what would be Palm Beach Reporting Service, Inc. EFTA00801175  1 admissible at trial. And the nature of that 2 question the Court finds to be irrelevant to 3 publish before the jury. 4 So we move down to -- 5 MR. LINK: Twenty-six of 36, Your 6 Honor. 7 THE COURT: And I believe the next 8 question is, quote, Have you ever discussed 9 your sex-related activities with minors in 10 the state of Florida with any reporter, news 11 media representative? 12 I'm going to make the same objection. 13 Strike that. 14 I am going to make the same ruling on 15 relevancy grounds for the purpose of 16 publishing the question to the jury. 17 Next is page 21, lines 6 through 22 of 18 that deposition. 19 Question: "Were the allegations in the 20 federal complaint on behalf of III. any 21 different than the allegations in the state 22 court case on behalf of Ill.?" 23 The answer is, "I don't recall." 24 Are you objecting to that? 25 MR. LINK: No, Your Honor. Palm Beach Reporting Service, Inc. EFTA00801176  1 THE COURT: Next question, "Did you, in 2 fact, engage in any sexual conduct with 3 4 He begins to answer, but then says he 5 will take the Fifth Amendment. 6 Mr. Scarola. 7 MR. SCAROLA: This is one of the three 8 victims. This is the claim that Jeffrey 9 Epstein alleges was fabricated. This is the 10 claim that he alleges was ginned up. This 11 is the claim that he alleges had no value. 12 So I'm not -- 13 Is it relevance and materiality that 14 the Court is concerned with at this point? 15 Because it's hard for me to imagine how it 16 could be more directly relevant to the 17 falsity of the allegations that Mr. Epstein 18 made against Brad Edwards when he says that 19 these claims were fabricated. 20 THE COURT: All right. Mr. Link. 21 MR. LINK: Yes, sir. Your Honor, I 22 don't want to parse words about the 23 complaint. We looked at it so many times. 24 Mr. Epstein never said these claims were 25 fabricated. Palm Beach Reporting Service, Inc. EFTA00801177  1 We have looked at that language 2 together. Mr. Scarola says it at every 3 hearing. He said the claims were used to 4 fabricate settlements by Mr. Rothstein. The 5 statement in the complaint was that the 6 claims were weak as compared to the dollar 7 amount Mr. Rothstein was saying. I think 8 this question is vague. I don't know what 9 kind of sexual conduct we are talking about. 10 This is not III.'s case against 11 Mr. Epstein. This is Mr. Edwards's case 12 against Mr. Epstein. So I don't see how 13 this question is relevant to the jury. I 14 also believe it's prejudicial, and I also 15 believe it's vague and should not come in. 16 MR. SCAROLA: Mr. Link and I have a 17 very different understanding about 18 Mr. Epstein's testimony regarding these 19 claims having been fabricated, and a very 20 different understanding about what the 21 complaint says about these claims having 22 been fabricated. Regardless of whether he 23 says they were fabricated, he clearly says 24 they were ginned up. They had no value. 25 That the value attempted to be asserted was Palm Beach Reporting Service, Inc. EFTA00801178 1 grossly aggravated. 2 Whether he engaged in sexual conduct 3 with III., who admittedly was a minor at the 4 time, how many times he engaged in sexual 5 conduct with III., clearly goes to the value 6 of these claims. 7 And he refuses the answer questions 8 with regard to those matters. That is 9 relevant -- directly relevant and material. 10 THE COURT: Well, the issue that I'm 11 looking at more than anything else is one of 12 whether or not the probative value is 13 substantially outweighed by the prejudice. 14 And in looking at 90.403, since we are 15 going to be dealing with it frequently, the 16 rule of evidence states, quote, Relevant 17 evidence is inadmissible if its probative 18 value is substantially outweighed by the 19 danger of unfair prejudice, confusion of 20 issues, misleading the jury, or needless 21 presentation of cumulative evidence. End 22 quote as to the pertinent portion of the 23 statute. 24 MR. SCAROLA: I'm not sure -- 25 THE COURT: I don't need any further Palm Beach Reporting Service, Inc. EFTA00801179  39 1 argument until I request it be provided, 2 please. 3 MR. SCAROLA: Sorry, Your Honor. 4 THE COURT: I bring us back again -- 5 it's grounds for the Court's ultimate 6 ruling. I have been contemplating this, 7 obviously, for quite some time -- to the 8 time and place relating to the filing of the 9 malicious prosecution claim, and the fact 10 that these claims were continuing to mount 11 the publicity that was being generated 12 against Mr. Epstein was also continuing and 13 relentless. For the record, I am not 14 suggesting that said publicity was 15 disproportionately provided. It simply was 16 a matter of fact. 17 And bringing us back to the time and 18 place analysis that the Court has engaged in 19 on numerous occasions in the past, when the 20 Rothstein firm crumbled and the various 21 governmental agencies were raiding the 22 offices, including the office of 23 Mr. Edwards, that is when Mr. Epstein 24 decided to bring this malicious prosecution 25 claim. Palm Beach Reporting Service, Inc. EFTA00801180  40 1 His testimony in his deposition was 2 such that he validated his claim that 3 Rothstein and others, including 4 Mr. Edwards -- including III., for that 5 matter, who was one of the defendants in the 6 Epstein malicious prosecution claim -- had 7 sensationalized, had ginned up, had 8 conflated the claims that were pending 9 against him so as to attract millions of 10 dollars in what turned out to be 11 extraordinarily difficult to understand 12 investments -- which should be placed in 13 quotes -- and were the factoring of the 14 cases by Mr. Rothstein and perhaps others, 15 though, I don't know of anything that was 16 proven or alleged against Mr. Edwards in 17 that vein. 18 And that essentially the claims against 19 Epstein relating to the Edwards clients -- 20 in particular E.W., Jane Doe and more 21 particularly III., to whom this question was 22 directed -- were inappropriately inflated 23 and the allegations, as well, made up or 24