EFTA00793499.pdf

Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 1 of 165 UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION www.flsb.uscourts.gov IN RE: CASE NO.: 09-34791-RBR ROTHSTEIN ROSENFELDT ADLER, P.A., CHAPTER 11 Debtor. INTERVENOR-VICTIM L.M.'S MOTION TO COMPEL JEFFREY EPSTEIN TO PROVIDE ANSWERS TO DEPOSITION QUESTIONS Intervenor L.M., proceeding pseudonymously, having previously been allowed to intervene in this action, now respectfully submits this Motion to Compel Jeffrey Epstein to Provide Answers to Deposition Questions. Because Epstein has improperly refused to answer multiple questions at his recent deposition, the motion should be granted. Relevant Factual Background The facts of this case are familiar to this Court. For present purposes, it is enough to note that on October 13, 2018, Jeffrey Epstein sat for his deposition in this matter, as previously ordered by this Court (DE 6366). The subject of the deposition was "allegations of federal civil contempt regarding the alleged discovery violations of the Agreed Order." DE 6366 at 5 (citing DE 1194). Mr. Epstein improperly refused to answer many questions about this subject during his deposition, as enumerated below. Relevant Legal Standards Under Federal Bankruptcy Rule 7030, Rule 30 of the Federal Rules of Civil Procedure applies in adversary bankruptcy proceedings of this type. Under Rule 30, a deponent can refuse to answer questions only to protect a privilege or enforce a limitation ordered by the Court. Under Rule 37(a)(3)(B)(i) (made applicable to bankruptcy proceedings under Federal Bankruptcy Rule 1 EFTA00793499  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 2 of 165 7037), a party may move to compel an answer to a question asked during a deposition. See, e.g., In re Stasch, 2007 WL 1491109 (Bankr. S.D. Fla. 007) ("Fed. R. Civ. P. 37 applies in adversary proceedings. Rule 37(b)(2) permits the Court to impose sanctions for discovery violations. A primary purpose of Rule 37 is to prevent and deter future discovery abuses."). Of course, it is well-known that discovery depositions are not limited to collecting evidence that may be admissible at trial. Instead, discovery is allowed to obtain information that is "germane, conceivably helpful to plaintiff, or reasonably calculated to lead to admissible evidence. . . . In short, information can be relevant and therefore discoverable, even if not admissible at trial, so long as the information is reasonably calculated to lead to the discovery of admissible evidence." Donahay v. Palm Beach Tours & Transp., Inc„ 242 F.R.D. 685, 687 (S.D. Fla. 2007) (internal quotations omitted). The burden is on the party asserting a privilege or other basis for refusing to answer a deposition question to establish the basis for doing so. See In re Fisher Island Investments, Inc.„ 2015 WL 148449 at * 2 (Bankr. S.D. Fla. 2015) (placing burden on party asserting privilege). Improper Refusal to Answer Questions During his deposition, Mr. Epstein improperly refused to answer multiple questions he was asked. Illustrative of the questions he improperly refused to answer are each of the following questions. These examples are illustrative, and Mr. Epstein should be ordered to answer all these questions and others of equivalent character or on similar subjects, including followup questions based on the answers to the questions below. Invoices showing description of services Q: Were you ever billed by Fowler White with invoices that included a description of the services that Fowler White rendered on your behalf? MR. LINK: I am instructing him not to answer. 2 EFTA00793500  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 3 of 165 First Epstein Depo Transcript at 14 (hereinafter "1' Epstein Depo. Tr.", attached as Exhibit A). The descriptions of the services that Fowler White rendered on Epstein's behalf could be vital in developing a timeline about when the disc was review or copied, and questioning about the possible existence of such records is appropriate. If counsel is asserting an attorney-client objection, merely describing the kinds of invoices that Epstein received would not reveal the substance of any communication. And, in any event, Epstein bears the burden of proof on the applicability of any privilege. Remainder ofConversation with Attorney that Epstein Partially Disclosed Q: Paragraph four of your declaration, Exhibit Number 1, states, "In February 2018, Scott J. Link of Link & Rockenbach, PA, informed me that he had located a disc in Fowler White's files labeled," quote, Epstein Bate Stamp, unquote. Did I read that accurately? A: Correct. Q: That was a communication from Mr. Link, your lawyer, to you, correct? A: Yes. Q: What else did Mr. Link tell you? MR. LINK: So, I'm going to instruct you not to disclose any of your conversations that involved legal advice or strategy or protected communication. If you recall that I said anything other than I located a disc specific to that topic, you can answer. THE WITNESS: I remember that. Everything else I talked with my attorneys. BY MR. SCAROLA: Yes, I know you were talking to your lawyer. I want to know everything that your lawyer told you in this conversation that you have partially disclosed.... What else did he tell you? MR. LINK: So, I'm going to instruct you not to answer based both on attorney- client privilege and exceeds the scope of Judge Hafele's order. I" Epstein Depo. Tr. at 22. Clearly Epstein put forward the conversation with his attorney about the disc in paragraph four of his declaration in this case. Accordingly, he waived attorney-client privilege over the conversation. See Fla. Stat. § 90.507 ("A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person, or the person's predecessor while holder of the privilege, voluntarily discloses . . . or consents to disclosure of, any significant part of the matter or communication."). He should be compelled to 3 EFTA00793501  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 4 of 165 describe the rest of the conversation. And Epstein bears the burden of proving the applicability of attorney-client privilege. Receipt ofDocumentsfrom the Disc Q: What specific documents that originated on the disc did you receive? MR. LINK: So, I'm going to instruct you not to answer that question based on attorney-client and work product. Ist Epstein Depo. Tr. at 22. Clearly Epstein put forward the conversation with his attorney about the disc in paragraph four of his declaration. Accordingly, he waived attorney-client privilege over the conversation. See Fla. Stat. § 90.507 ("A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person, or the person's predecessor while holder of the privilege, voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication."). He has no right to put forward the part of the conversation that he believes is helpful to him, without at the same time answering questions about other parts of the conversation. And he bears the burden of proving privilege. Epstein's Awareness ofAssertion ofPrivilege over Entails Q: You are aware that there are emails which Bradley Edwards alleges to be privileged emails, correct? A: I am aware that there -- I was told 27,000 emails [were] alleged -- in some form to be privileged. Q: Who told you [that 27,000 documents were alleged to be privileged]? A: My attorneys. Q: Which one? A: I don't recall. Q: When? A: I don't recall. Q: Was it before or after March of 2018? A: Before. Q: Was it before or after February of 2018? A: I don't recall. Q: What do you remember about that conversation? MR. LINK: Again, I don't want you to share the details of the conversation. 4 EFTA00793502  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 5 of 165 MR. SCAROLA: He has already done that. He has already made an assertion of what he was told. That's a waiver of the privilege. I want to know about the conversation in its entirety. MR. LINK: And I don't believe that it was a waiver of the privilege. He gave you non-privileged communication, and he's not going to share with you privileged communications. r Epstein Depo. Tr. at 51-52. In the exchange quoted here, Epstein states that he "was told 27,000 emails [were] alleged -- in some form to be privileged." That constituted a waiver of any privileges regarding what he was told, which is clearly critical to this contempt proceeding where the willfulness of Epstein's (and his attorneys') actions is central. Here again, Epstein cannot put forward the part of the conversation that he believes is helpful to him, without at the same time answering questions about other parts of the conversation. And he bears the burden of establishing a privilege. Existence of Relevant Documents Q: Were you informed that you had an obligation to bring with you at the time of this deposition those items that are described on the second page of Exhibit Number 3, quote, All communications and all records relating to all communications concerning or containing information derived from documents or data over which a claim of privilege was asserted by or on behalf of Rothstein, Rosenfeldt, Adler PA; Fanner, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L.; or Bradley J. Edwards? MR. LINK: I think -- which subpoena duces tecum are you looking at, Jack? Which case? MR. SCAROLA: This is the subpoena duces tecum issued in the bankruptcy court proceedings. MR. LINK: So in the bankruptcy court proceeding, we filed an objection to the subpoena duces tecum, and you and your law firm never responded, so there are no documents being produced in the bankruptcy matter. BY MR. SCAROLA: Q: Do you have any documents that fit within the description that I just read? MR. LINK: You are not going to answer that question. MR. SCAROLA: And the basis for that? MR. LINK: I filed my objection and it has sat there for months and you didn't respond to it or move to compel it. I am not going to let him answer any questions about it. 5 EFTA00793503  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 6 of 165 1St Epstein Depo. Tr. at 59-61. In the exchange quoted here, Epstein is merely asked whether he has documents of a certain type. Epstein's counsel argues that he had filed a motion to quash a subpoena associated with those documents. But even assuming the existence of such a motion to quash, that hardly constitutes a basis for instructing the witness not to answer. Epstein should be compelled to answer about the existence of such documents. Bias in Answering Questions Q: Do you have any bias against L.M., sir? MR. LINK: I'm going to instruct you not to answer that question. It exceeds the scope of the permitted deposition by Judge Ray. 2nd Epstein Depo. Tr. at 8, attached as Exhibit B. Epstein's deposition was taken in connection with the pending contempt proceedings, and some of the answers that Epstein gave were unfavorable to L.M. L.M. is entitled to ask whether Epstein bears any bias against her. See, e.g., Davis v. Alaska, 415 U.S. 308, 316 (1974) ("The partiality of a witness is subject to exploration at trial, and is 'always relevant as discrediting the witness and affecting the weight of his testimony') (quoting 3A J. Wigmore, Evidence § 940, p. 775 (Chadboum rev. 1970)). Reason to Deny Having Knowledge about the Disc. Q: Mr. Epstein, would you have any reason to deny having knowledge about a disc that contains information about L.M.? MR. LINK: I am going to instruct you not to answer the question. I don't understand it. I believe it exceeds the scope of this deposition as set by Judge Ray. 2nd Epstein Depo. Tr. at 10. Epstein's deposition was taken in connection with the pending contempt proceedings, and some of the answers that Epstein gave were unfavorable to L.M. L.M. is entitled to ask whether Epstein bears any bias against her. See, e.g., Davis v. Alaska, 415 U.S. 308, 316 (1974) ("The partiality of a witness is subject to exploration at trial, and is `always relevant as discrediting the witness and affecting the weight of his testimony') (quoting 3A J. Wigmore, Evidence § 940, p. 775 (Chadboum rev. 1970)). 6 EFTA00793504  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 7 of 165 Reason to Deny Having Knowledge about a Disc Referred to in Paragraph . Q: Do you see paragraph four of that sworn declaration of facts? A: Yes. Q: And do you see a reference there to a disc, quote, CD, in that paragraph? A: Yes. Q: Would you have any reason to deny knowledge about that CD? MR. LINK: Object to the form. And I'm going to instruct him not to answer. MR. CASSELL: On what basis? MR. LINK: The question is not consistent with what Judge Ray, in his ruling, where he says very limited to asking him about his knowledge. 2nd Epstein Depo. Tr. at 13. In this contempt proceeding, Epstein filed a sworn declaration of facts, including an assertion in paragraph four regarding a CD at the center of this proceeding. Counsel is entitled to explore reasons why Epstein might not want to admit knowing about the CD, as that goes directly to his testimony on central issues in this proceeding. Failure to Disclose Knowledge of the Disc to the Court Q: [In your declaration] [why didn't you inform Judge Ray that you had the information from the CD in other ways? MR. LINK: Well, then I am going to instruct him not to answer the question, because, A, it's nonsensical. And, B, it is beyond the scope of Judge Ray's order. 2nd Epstein Depo. Tr. at 16-17. This question asks about a paragraph in Epstein's declaration, in which he represented to the Court that he had "never seen the CD." During questioning in the deposition, it became apparent that Epstein had in fact seen the information from the CD. This question simply asks the natural followup question on this important issue: Why didn't Epstein disclose this fact to the Court? Prejudice Again L.M. Q: Do you have any prejudice against my client [i.e., L.M.] that would lead you to say no when in fact the answer is yes? MR. LINK: I am going to instruct you not to answer. 7 EFTA00793505  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 8 of 165 2nd Epstein Depo. Tr. at 22-23. This question simply asks about Epstein's prejudice against L.M., which might lead him to give inaccurate testimony. Questioning about such bias is always relevant, as discussed earlier. Possession ofDocuments Connect to the CD Q: On or after February 1st, 2018, do you have any documents connected to the CD? A: I don't know what you mean by connected to. Are asking me if I kept any copies of the emails that reference your client [i.e., L.M.]? Q: No. I am asking you whether you have any documents connected to the CD. MR. LINK: Mr. Cassell, I am just going to object and instruct him not to answer the question. BY MR. CASSELL: Q: Mr. Epstein, on or after February 1st, 2018, do you have any documents related to the CD? MR. LINK: Again, I'm going to object to the form. I don't know how he can answer that question. I believe it exceeds what the bankruptcy court has permitted. The bankruptcy court was very clear that what has happened post my receipt of the CD is not an issue for the bankruptcy court, so I am going to instruct you not to answer, Mr. Epstein. BY MR. CASSELL: Q: Mr. Epstein, on or after February 1st, 2018, do you have any documents connected to L.M. that came from the CD? MR. LINK: I have got the same objection and the same instruction. 2nd Epstein Depo. Tr. at 27-28. The CD is at the center of this contempt proceeding, and this passage merely shows a question about whether Epstein has document connected with the CD. Such questions are clearly within the scope of the deposition permitted. Statements Epstein Received about Locating the CD Q: Do you see paragraph four in that document? A: You have asked me that question before. Yes. Q: And in that paragraph four, it indicates that Scott Link informed you that he had located a CD. MR. LINK: Yes, sir, that's what it says. BY MR. CASSELL: Q: Did he tell you anything about L.M. when he informed you he had located the disc? MR. LINK: I am going to instruct him not to answer based on both attorney-client privilege, work product, and it exceeds the scope of Judge Ray's order. 8 EFTA00793506  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 9 of 165 2nd Epstein Depo. Tr. at 32. Epstein made a disclosure about what Mr. Link informed him of, and this question simply asks what was disclosed — specifically with reference to L.M. Again, such issues are at the heart of this contempt proceeding, particularly since they relate to Mr. Epstein's declaration filed in this proceeding. CONCLUSION The Court should direct Mr. Epstein to answer the questions described above and questions of a similar character and should permit counsel to ask follow up questions associated without the answers that were improperly withheld. 9 EFTA00793507  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 10 of 165 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was served electronically to all registered users on the CM/ECF system, which includes counsel identified on the service list below, on this 22nd day of October, 2018. I HEREBY CERTIFY that the undersigned attorney is appearing pro hac vice in this matter pursuant to court order dated May 4, 2018. Paul G. Cassell, Esq. S.J. Quinney College of Law at the University of Utah (above for address/contact purposes only, not to imply institutional endorsement) By: /s/ Paul G. Cassell r N' Pro Hac Vice -AND — I HEREBY CERTIFY that I am admitted to the Bar of the United State District Court for the Southern District of Florida and I am in compliance with the additional qualifications to practice in this court set forth in Local Rule 2090-1(A). SHAPIRO LAW By: /s/ Peter E. ha it Peter E. Shapiro (FBN Attorneysfor Intervenors L.M., E.W., and Jane Doe 10 EFTA00793508  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 11 of 165 SERVICE LIST Bradley J. Edwards FLBN Brittany N. Henderson FLBN 118247 Edwards Pottinger LLC Attorneysfor Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. Jack Scarola, Esi= Florida Bar No. David P. Vitale, Florida Bar No. Attorney E-Mails' Primary E-Mail: Searcy Denney Scarola Barnhart & Shipley, P.A. Attorneysfor Bradley J. Edwards Scott J. Link, Esq. Link &Rockenbach, P.A. Chad P. Pugatch, Esq. Rice Pugatch Robinson Storfer & Cohen, PLLC Attorneysfor Jeffrey Epstein 11 EFTA00793509  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 12 of 165 Niall T. McLachlan Carlton Fields Jorden Burt, P.A. Counselfor howler White Burnett, Y.A. 12 EFTA00793510 Case 08-34791-F2BR Doc 6488 Filed 10/22118 Page 13 of 165 EXHIBIT A FIRST EPSTEIN DEPOSITION EFTA00793511 Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 14 of 165 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. / VIDEOTAPED DEPOSITION OF JEFFREY EPSTEIN Saturday, October 13th, 2018 9:07 a.m. - 11:00 a.m. 1555 Palm Beach Lakes Boulevard, #930 West Palm Beach, Florida 33401 Examination of the witness taken before 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. 561-471-2995 EFTA00793512  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 15 of 165 2 1 APPEARANCES: 2 For Plaintiff/Counter-Defendant: 3 LINK & ROCKENBACH, P.A. 4 By SCOTT J. LINK, ESQUIRE 5 By KARA BERARD ROCKENBACH, ESQUIRE 6 For Plaintiff/Counter-Defendant: 7 ATTERBURY, GOLDBERGER & WEISS, P.A. 8 By JACK A. GOLDBERGER, ESQUIRE 9 10 For Defendants/Counter-Plaintiffs: 11 SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 12 13 By JACK SCAROLA, ESQUIRE 14 For Fowler White: 15 CARLTON FIELDS, PA 16 By JOSEPH IANNO, JR, ESQUIRE 17 18 For L.M., E.W. and Jane Doe: 19 S.J. QUINNEY COLLEGE OF LAW at the UNIVERSITY OF UTAH 20 21 By PAUL G. CASSELL, ESQUIRE (Telephonically) 22 ALSO PRESENT 23 Above & Be ond Reprographics 24 By Manuel Santiago, Videographer 25 Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793513  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 16 of 165 1 INDEX 2 3 Videotaped Deposition of JEFFREY EPSTEIN Page No. 4 5 Direct Examination by Mr. Scarola 5 6 Certificate of Oath 83 7 Certificate of Reporter 84 8 Read & Sign Letter to Witness 85 9 10 11 12 PLAINTIFF'S EXHIBIT INDEX 13 (No exhibits were marked.) 14 15 16 DEFENDANTS/COUNTER-PLAINTIFFS' EXHIBIT INDEX 17 18 No. Description Page No. 19 1 Sworn Declaration of Jeffrey Epstein 6 20 2 Affidavit of Jeffrey Epstein 40 21 3 Re-Notice of Taking Deposition 58 22 4 Re-Notice of Taking Deposition 62 23 24 25 Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793514  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 17 of 165 4 1 THE VIDEOGRAPHER: We are on the video 2 record. This is the 13th day of 3 October 2018. The time is approximately 4 9:07 a.m. 5 This is the videotaped deposition of 6 Jeffrey Epstein in the matter of Jeffrey 7 Epstein versus Scott Rothstein, 8 individually; Bradley Edwards, individually; 9 L.M. individually. 10 This deposition is being held at 1555 11 Palm Beach Lakes Boulevard, West Palm Beach, 12 Florida 33401. 13 My name is Manuel Santiago. I am the 14 videographer representing Above & Beyond 15 Reprographics. 16 Will the attorneys please announce 17 their appearances for the record? 18 MR. SCAROLA: My name is Jack Scarola. 19 I am counsel on behalf of Bradley Edwards. 20 MR. LINK: Scott Link and Kara 21 Rockenbach on behalf of Mr. Epstein. 22 MR. GOLDBERGER: And Jack Goldberger on 23 behalf of Jeffrey Epstein. 24 MR. SCAROLA: On the phone we have 25 Professor Paul Cassell. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793515  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 18 of 165 5 1 MR. CASSELL: Can I just chime in here? 2 Paul Cassell for L.M., E.W. and Jane Doe, 3 intervenors in the Florida State court 4 action. 5 THEREUPON, 6 JEFFREY EPSTEIN, 7 being a witness in the notice heretofore 8 filed, and being first duly sworn in the above cause, 9 testified on his oath as follows: 10 THE WITNESS: Yes. 11 DIRECT EXAMINATION 12 BY MR. SCAROLA: 13 Q Would you please state your full name? 14 A Jeffrey E. Epstein. 15 Q Would you list for us, please, each of your 16 residence addresses? 17 MR. GOLDBERGER: I think it's beyond 18 the scope. I'm going to object to Fifth 19 Amendment. 20 You want him to invoke or you okay with 21 me doing it? 22 MR. SCAROLA: We want Mr. Epstein to 23 invoke any privilege that Mr. Epstein 24 considers appropriate to invoke. 25 THE WITNESS: The Fifth. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793516  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 19 of 165 6 1 BY MR. SCAROLA: 2 Q I'm sorry? 3 A The Fifth. 4 Q You are the same Jeffrey Epstein that is a 5 party in the current state court proceedings in which 6 Bradley Edwards has brought suit against you for 7 malicious prosecution, correct? 8 A Correct. 9 Q Mr. Epstein, I'm going to hand you what I 10 have marked as Exhibit Number 1 to this deposition. 11 Ask you to take a look at that document. 12 MR. SCAROLA: Paul, this is 13 Mr. Epstein's sworn declaration of fact that 14 was filed in the bankruptcy court 15 proceeding. 16 MR. CASSELL: I am familiar with that. 17 Thank you, Jack. 18 (Defendants/Counter-Plaintiffs' Exhibit 19 Number 1 was marked for identification.) 20 BY MR. SCAROLA: 21 Q Do you recognize the document, Mr. Epstein? 22 A Yes. 23 Q Is that, in fact, your signature above the 24 line that says Jeffrey Epstein? 25 A Yes. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793517  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 20 of 165 Q There is a signature to the left of yours at 2 the bottom of the document. Whose signature is that? 3 A I don't know. 4 Q Who were the attorneys who were representing 5 you at the time that this declaration was prepared on 6 August 14, 2018? 7 MR. LINK: Object to the form. 8 THE WITNESS: Could you ask the 9 question again? 10 BY MR. SCAROLA: 11 Q Yes, sir. 12 Who were the lawyers who were representing 13 you in this matter on August 14, 2018? 14 THE WITNESS: Scott Link. 15 BY MR. SCAROLA: 16 Q Anyone else? 17 A Jack Goldberg. 18 Q Anyone else? 19 A Darren Indyke. 20 Q Anyone else? 21 A Not that I recall. 22 Q Who prepared this declaration? 23 A I believe the Link firm. 24 Q Was it sent to you initially in the form in 25 which it presently appears? Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793518  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 21 of 165 1 A I don't recall. 2 Q Do you have any recollection whatsoever of 3 having any input into the content of this declaration? 4 MR. LINK: So, Mr. Epstein, I just want 5 to caution you. I don't want you to share 6 any of our communications or conversations. 7 Okay. You can answer the question 8 without disclosing anything we have talked 9 about. 10 THE WITNESS: No. 11 BY MR. SCAROLA: 12 Q You had no input? 13 A I don't have anything separate from my 14 attorneys. Any input I have is with conversations with 15 my attorneys. 16 Q That's not my question. I have not asked you 17 whether you received any information from your 18 attorneys. 19 I asked you whether you had any input into 20 the content of this declaration. 21 MR. LINK: Again, I am going to 22 instruct you not to disclose any of our 23 conversations and communications. 24 You can simply answer yes or no to the 25 question. If you remember it, then you can. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793519  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 22 of 165 THE WITNESS: Sorry. So I'm clear, the 2 conversations I had with you about this -- 3 MR. LINK: We are not going to talk 4 about. 5 THE WITNESS: So is that an answer of 6 yes or no? 7 MR. LINK: If the question is, do you 8 recall whether you made any changes to what 9 was sent to you, I think you can answer yes 10 or no. 11 MR. SCAROLA: That's not the question. 12 BY MR. SCAROLA: 13 Q I want to know whether you had any input 14 whatsoever into the drafting of this declaration. 15 Was any of the information contained in 16 this declaration -- included in the declaration as a 17 consequence of input that you personally had? Or 18 was it simply all drafted by somebody else for your 19 signature? 20 MR. LINK: So, if you can answer that 21 question without disclosing our 22 communications, you can answer the question. 23 If you can't answer it without disclosing 24 our communication, Mr. Epstein, then you are 25 instructed not to answer it. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793520  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 23 of 165 10 1 BY MR. SCAROLA: 2 Q Your answer to the question, sir? 3 A I can't disclose anything -- I have only had 4 a conversation with my attorney regarding this. 5 Q Yes, sir. 6 But my question does not ask you about any 7 communication you had with your lawyers. I am 8 asking you whether you had any input into the 9 language that is included within this declaration. 10 Is anything here your -- the consequence 11 of your input? 12 MR. LINK: So, let me just -- I have 13 two questions for you, Mr. Scarola. One, I 14 thought we were starting with the state 15 court matter. 16 MR. SCAROLA: We are. 17 MR. LINK: I may have misunderstood, 18 because this is a bankruptcy declaration. 19 And there isn't anything in Judge Hafele's 20 order that talks about bankruptcy testimony 21 or spoke that you can inquire about. 22 Obviously, by signing this, he has 23 adopted every statement in there as his own. 24 So I'm not sure what we are doing at the 25 moment. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793521  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 24 of 165 11 1 BY MR. SCAROLA: 2 Q Can you answer the question, sir? 3 A I cannot answer the question. 4 Q Why? 5 A Anything I talked about with respect to this 6 document is a conversation with my attorneys. 7 Q And I'm not asking about any communication 8 you had with your lawyer. I want to know whether 9 anything in this affidavit is as a consequence of your 10 personal input. 11 MR. LINK: So, if there was anything 12 you did separate and apart from our 13 conversations, then you can tell him. If 14 not -- 15 THE WITNESS: No. 16 BY MR. SCAROLA: 17 Q No what? 18 A No. 19 Q Nothing in this affidavit was as a result of 20 your personal input; is that correct? 21 MR. LINK: What he said was separate 22 and apart. 23 My instruction is, you may not disclose 24 any of our communications. If you can 25 answer the question about something you did Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793522  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 25 of 165 12 1 separate and apart from my directions to you 2 or our communications, you can answer the 3 question. Other than that, you cannot. 4 MR. SCAROLA: Mr. Link, communications 5 with counsel are privileged if they are 6 intended to remain confidential. 7 If Mr. Epstein communicated something 8 to you to include within this affidavit, 9 that, obviously, was not intended to remain 10 confidential. It was intended to be 11 communicated in this particular filing. 12 MR. LINK: Mr. Scarola, I disagree with 13 you. I'm instructing him not to answer if 14 it's based on our communications period. 15 BY MR. SCAROLA: 16 Q The second paragraph of this affidavit says, 17 "The law firm of Fowler White Burnett, PA, represented 18 me" -- meaning you -- "in the state court proceeding 19 from June 2010 through May 2012." 20 What were the terms on which you retained 21 the Fowler White Burnett law firm? 22 MR. LINK: Mr. Scarola, you are 23 exceeding the scope of the deposition in the 24 state court matter. 25 There are four very specific limited Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793523  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 26 of 165 3. topics, none of which have you asked a 2 single question about. I'm really trying to 3 understand what -- 4 Do you want to do the bankruptcy first? 5 MR. SCAROLA: No. No, sir. I want to 6 do the state court proceeding first. I'm 7 asking questions that relate directly to the 8 topics that are defined within the state 9 court order and I would like an answer to 10 that question. 11 MR. LINK: Would you please tell me 12 which topic you are focused on? There are 13 only four. 14 MR. SCAROLA: This relates to all of 15 them. 16 MR. LINK: It does not, Mr. Scarola. 17 MR. SCAROLA: We have a disagreement 18 about that. If you are instructing him not 19 to answer, then the court will make a 20 determination as to whether that is or is 21 not an appropriate instruction and whether 22 we will or will not be back here to redepose 23 Mr. Epstein once again. 24 Are you instructing him to the answer? 25 MR. LINK: Your question is what were Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793524  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 27 of 165 1 1 the terms of his engagement of Fowler White? 2 MR. SCAROLA: Yes, that's correct. 3 MR. LINK: Then I'm instructing him not 4 to answer. 5 BY MR. SCAROLA: 6 Q Did you engage Fowler White on an hourly 7 basis? 8 MR. LINK: I am instructing him not to 9 answer. 10 BY MR. SCAROLA: 11 Q Did Fowler White present invoices to you for 12 services that were rendered on an hourly basis? 13 MR. LINK: I am instructing him not to 14 answer. 15 BY MR. SCAROLA: 16 Q Were you ever billed by Fowler White with 17 invoices that included a description of the services 18 that Fowler White rendered on your behalf? 19 MR. LINK: I am instructing him not to 20 answer. 21 BY MR. SCAROLA: 22 Q Were you kept informed as to what Fowler 23 White did on your behalf in connection with their 24 representation of you? 25 MR. LINK: I'm instructing him not to Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793525  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 28 of 165 15 1 answer. It exceeds the scope of the court's 2 order. 3 BY MR. SCAROLA: 4 Q Your affidavit -- excuse me. Your 5 declaration states that as part of Fowler White's 6 representation of you, that they represented you in 7 proceedings in the bankruptcy case concerning a 8 subpoena that your original counsel issued to the 9 bankruptcy trustee. Is that statement true? 10 A Yes. 11 Q Who was your original counsel that issued the 12 subpoena to the bankruptcy trustee? 13 A I don't recall. 14 Q What was subpoenaed? 15 A The question again. 16 Q What was subpoenaed? 17 A I don't recall. 18 Q Were emails subpoenaed? 19 A I'm not sure what subpoena you are talking 20 about. Sorry. 21 Q The one that you declared under penalty of 22 perjury was issued by your original counsel to the 23 bankruptcy trustee. 24 A I don't recall. 25 Q Did you ever come to learn that the trustee Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793526  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 29 of 165 16 1 in the bankruptcy for the law firm Rothstein, 2 Rosenfeldt & Adler had been subpoenaed to produce 3 emails contained on the server of that law firm? 4 A I don't recall. 5 Q Did it ever come to your attention that 6 emails contained on the server of the law firm 7 Rothstein, Rosenfeldt & Adler had been produced in 8 connection with the state court civil proceedings by 9 the bankruptcy trustee to a special master that had 10 been appointed for purposes of determining what, if 11 any, emails from that production would be turned over 12 in response to the subpoena that was issued? 13 A Separate from any conversations with my 14 attorney, I don't recall. 15 Q Did you ever learn that privilege was being 16 asserted with respect to the production of any emails 17 that were contained on a Rothstein, Rosenfeldt, Adler 18 server? 19 A Separate from a conversation with my 20 attorneys, I don't recall. 21 Q Are you aware, as you sit here today, that 22 federal bankruptcy Judge Ray issued an order with 23 respect to procedures to be followed in connection with 24 responding to an email subpoena? 25 MR. LINK: Object to the form. Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793527  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 30 of 165 17 1 MR. SCAROLA: What's the problem with 2 the form? 3 MR. LINK: You didn't give us any time. 4 Is there more than one? 5 MR. SCAROLA: No, I did. I said as you 6 sit here today. 7 MR. LINK: No, as to the order. But -- 8 If you can answer the question, you can 9 answer question. 10 THE WITNESS: I'm sorry. You have to 11 repeat it. 12 BY MR. SCAROLA: 13 Q Yes. As you sit here today, are you aware 14 that federal bankruptcy Judge Ray issued an order 15 concerning matters relating to the production of 16 Rothstein, Rosenfeldt, Adler emails? 17 MR. LINK: Object to the form. 18 THE WITNESS: Outside conversations 19 with my attorney, no. 20 BY MR. SCAROLA: 21 Q Have you ever seen an order issued by federal 22 bankruptcy Judge Ray that impose restrictions on the 23 possession of electronic data produced in response to a 24 subpoena for emails from the Rothstein, Rosenfeldt, 25 Adler law firm? Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793528  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 31 of 165 MR. LINK: Object to the form. 2 THE WITNESS: Outside of conversations 3 with my attorney, no. 4 BY MR. SCAROLA: 5 Q Tell me about the conversations that you had 6 with your lawyers relating to the terms of Judge Ray's 7 order. 8 MR. LINK: I am going to instruct you 9 not to answer that question. 10 BY MR. SCAROLA: 11 Q Have you ever personally seen any of the 12 language that was included within Judge Ray's order? 13 A Outside of the conversations with my 14 attorney, no. 15 Q Well, a conversation with your lawyer does 16 not tell me anything in response to a question that 17 asks what you have seen. 18 Have you ever seen any of the language 19 included within Judge Ray's order that impose 20 restrictions on the possession of electronic data 21 relating to emails of the Rothstein, Rosenfeldt, 22 Adler firm? 23 MR. LINK: So let me object to the 24 form. 25 If you can answer the question Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793529  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 32 of 165 19 1 independent of communications with your 2 lawyer -- so if you looked at the order on 3 your own, then you can answer. 4 THE WITNESS: I don't recall. 5 BY MR. SCAROLA: 6 Q Are you aware that contempt proceedings are 7 pending in the federal bankruptcy court? 8 A Yes. 9 Q What is your understanding of what those 10 proceedings are about? 11 A It's in regards to the discovery of a disc 12 that was in possession of Fowler White. 13 Q What is it in regard to that disc? 14 A That's not a very good question. Sorry. 15 Q I'm sorry? 16 A Can you ask a question? 17 Q The question is, what is it about this disc 18 that is the subject matter of contempt proceedings in 19 the bankruptcy court? 20 MR. LINK: So, again, if you can answer 21 the question based on your own personal 22 review of information rather than our 23 communications, you can share that with 24 Mr. Scarola. 25 THE WITNESS: Nothing outside my Palm Beach Reporting Service, Inc. 561-471-2995 EFTA00793530  Case 09-34791-RBR Doc 6488 Filed 10/22/18 Page 33 of 165