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NOT A CERTIFIED COPY Filing# 9985779 Electronically Filed 02/06/2014 02:00:01 PM JEFFREY EPSTEIN, Plaintiff, vs. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and L.M., individually, Defendant, I ---------------- IN THE CIRCUIT COURT OF THE FIFTEENTH illDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800XXXXMBAG COUNTER-PLAINTIFF BRADLEY EDWARDS' MOTION FOR RECONSIDERATION Counter-Plaintiff, BRADLEY EDWARDS (EDWARDS), moves this Honorable Court to reconsider the Court's announced intention to grant a summary judgment in favor of the Counter-Defendant, JEFFREY EPSTEIN (EPSTEIN), and in support of this motion would show: 1. The issue squarely presented by EPSTEIN'S Motion for Summary Judgment is whether a non-lawyer is protected from liability by the litigation privilege when he initiates a civil lawsuit knowing that it is not only unsupported by probable cause but that it is completely unsupported by both the facts and the law and is filed solely for the purpose of intimidation and extorting a negotiating advantage in other civil litigation. 2. Prior to the decision of the Third District Court of Appeal in Wolfe v. Foreman, 128 So.3d 67 (2013), no reported decision in the State of Florida or in any other jurisdiction in the nation had ever extended the absolute immunity of the litigation privilege to bar a properly pled claim for malicious prosecution. NOT A CERTIFIED COPY Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 2 of 13 As misinterpreted by the Third DCA, the litigation privilege would be converted from a tool to allow properly-filed litigation to move forward unimpeded into a license to deliberately file baseless litigation purely for purposes of harassment. If the Florida litigation privilege is interpreted to mean that even a maliciously filed lawsuit somehow becomes protected activity, then Florida will stand alone among all the states. Counsel have undertalcen a broad survey of the laws and court decisions in fifty states and the District of Columbia. At this point, counsel have been unable to locate even a single precedent from another state that would support such an extreme result. On the other hand, many states have written opinions malcing clear that while conduct within a properly-filed lawsuit supported by probable cause may be protected, the litigation privilege (sometimes referred to as the "judicial privilege") does not give license to maliciously file or maintain a lawsuit that is known to have no factual or legal support. As a recent decision explains, "A vast number of other jurisdictions ... hold that even where an absolute privilege bars an action for defamation based on statements made during a judicial proceeding, it does not bar an action for malicious prosecution." Estate of Mayer v. Lax, Inc., 998 N.E.2d238, 250 (Ind. App. 2013). The cases supporting this fundamental proposition are legion, including (arranged in alphabetical order by state): Alaska --Indus. Power & Lighting Corp. v. W Modular Corp., 623 P.2d 291, 298 (Alaska 1981) ("This [the litigation privilege] does not mean that [the defendant] may not maintain an action for malicious prosecution if the current litigation is terminated favorably to it, NOT A CERTIFIED COPY Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 3 of 13 and if malice on the part of [the plaintiff] and lack of probable cause for the claim asserted are pleaded and proven."); Arizona --Sierra Madre Dev., Inc. v. Via Entrada Townhouses Ass 'n, 20 Ariz. App. 550, 554, 514 P.2d 503, 507 (1973) ("We note that this [litigation] privilege is not unlimited .... [N]othing said herein is intended to affect the validity of any claim for relief based upon malicious prosecution or abuse of process. See Comment (a), Restatement of Torts, supra,§ 587 ")· .... ' California --Hogen v. Valley Hosp., 147 Cal.App.3d 119, 195 Cal.Rptr. 5, 7 (1983) (" ... the fact that a communication may be absolutely privileged for the purposes of a defamation action does not prevent its being an element of an action for malicious prosecution in a proper case. The policy of encouraging free access to the courts that underlies the privilege applicable in defamation actions is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied." (internal citations omitted)). Colorado --Mehaffy, Rider, Windholz & Wilson v. Cent. Bank Denver, NA., 892 P.2d 230, 241 (Colo. 1995) ("an attorney '[w]hile fulfilling his obligation to his client, [] is liable for injuries to third parties ... when his conduct is fraudulent or malicious"' (internal quotation omitted)); NOT A CERTIFIED COPY Edwards adv. Epstein Case No.: 502009CA040800:XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 4 of 13 Connecticut --Simms v. Seaman, 308 Conn. 523, 541, 69 A.3d 880, 890 (2013) ("This court also has determined that absolute immunity [i.e., litigation privilege] does not bar claims against attorneys for ... malicious prosecution."). Delaware --Nix v. Sawyer, 466 A.2d 407, 411 (Del.Super. 1983) ("any litigant seeking application of a 'sham litigation' exception [to judicial privilege] would have to present an exceedingly strong factual showing in order to defeat operation of the privilege .... [T]he plaintiffs' burden in this respect is analogous to the requisite showing for a claim of malicious t • ") prosecu 10n . . . . ; District of Columbia --Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332, 346 (D.C. 2001) ("An attorney who makes false and defamatory statements to inveigle a client into filing a frivolous lawsuit risks ... a malicious prosecution action by the party defamed, from which the judicial proceedings privilege will afford no protection.",) overruled on other grounds 3 A.3d 1132 (D.C. 2010); Hawaii - Kahala Royal Corp. v. Goodsill Anderson Quinn & Stifel, 113 Hawai'i 251, 268-269, 151 P.3d 732, 749-50 (Ha. 2007)("[A]bsolute privileges, such as the litigation privilege, should only be permitted in limited circumstances. Thus, we do not believe that a litigation privilege should apply to bar liability of an attorney in all circumstances. In Mehaffe, Rider, Windholz & Wilson v. Central Bank Denver, NA., 892 P.2d 230, 235 (Colo.1995), the Colorado Supreme [C]ourt noted that "an attorney is not liable to a non-client absent a finding of fraud or malicious conduct by the attorney." See also Baglini v. Lauletta, ... [338 NJ.Super. NOT A CERTIFIED COPY Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Counter-Plaintiff Bradley Edwards' Motion for Reconsideration Page 5 of 13 282,] 768 A.2d 825, 833-34 (2001) ("The one tort excepted from the reach of the litigation privilege is malicious prosecution, or malicious use of process."). We believe such exceptions to an absolute litigation privilege arising from conduct occurring during the litigation process are reasonable accommodations which preserve an attorney's duty of zealous advocacy while providing a deterrent to intentional conduct which is unrelated to legitimate litigation tactics and which harms an opposing party."); Idaho --Taylor v. McNichols, 149 Idaho 826, 840-41, 243 P.3d 642, 656-57 (2010) ("Application of the litigation privilege varies across jurisdictions, but the common thread found throughout is the idea that an attorney acting within the law, in a legitimate effort to zealously advance the interests of his client, shall be protected from civil claims arising due to that zealous representation. An attorney engaging in malicious prosecution, which is necessarily pursued in