1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNCERTIFIED TRANSCRIPT DISCLAIMER IN THE MATTER OF EPSTEIN v. EDWARDS DRAFT ONLY !!!! NOT PROOFREAD EFTA00792811

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The following transcript(s) of proceedings, or any portion thereof, in the above-entitled matter, taken on November 29th, 2017, is being delivered UNEDITED and UNCERTIFIED by the official court reporter at the request of Kara Rockenbach, Esquire. The purchaser agrees not to disclose this uncertified and unedited transcript in any form (written or electronic) To anyone who has no connection to this case. This is an unofficial transcript, which should NOT be relied upon for purposes of verbatim citation of testimony. This transcript has not been checked, proofread or corrected. It is a draft transcript, NOT a certified transcript. As such, it may contain computer-generated mistranslations of stenotype code or electronic transmission errors, resulting in inaccurate or nonsensical word combinations, or untranslated stenotype symbols which cannot be deciphered by non-stenotypists. Corrections will be made in the preparation of the certified transcript, resulting in differences in content, page and line numbers, punctuation and formatting. This realtime uncertified and unedited transcript contains no appearance page, certificate page, index or certification. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792812

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: We are here on Epstein versus Rothstein and Edwards. The two applicable parties being dealt with -- have a seat, please. Thank you. -- being Mr. Epstein and Mr. Edwards, and the counterclaim brought by Mr. Edwards against Epstein relative to a malicious prosecution claim that has been brought. We will confine our arguments to that particular matter. And we will keep in mind the following: Direct all of your arguments to the bench. Please do not speak to each other. Please stay away from any pejorative, unnecessary comments as it relates, in particular, to the counter-defendant. I will remind you that the Court order that I executed relative to the continuous of the trial on 14 November this year, ordered that no replies be provided to the Court absent court order. You have violated my order. The replies are being ignored. I do not expect that to be repeated, absent sanctions. Is that understood? Both sides? Ms. Rockenbach? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792813

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. ROCKENBACH: Yes, Your Honor. THE COURT: Mr. Scarola? MR. SCAROLA: Yes, Your Honor. THE COURT: If I need them, I will ask for them. I have several bankers boxes' worth of materials here. I don't need anything further unless I request it. I am well-advised in the case, as you may or may not know. I think I announced this earlier, for whatever it's worth, I handled the underlying cases in division AB. So I have had a long history in dealing with the matters that surround the instant action. Let's start with the counter-defendant's revised omnibus motion in limine. MR. LINK: May it please the Court. THE COURT: Yes, sir. Thank you. MR. LINK: Thank you, Your Honor. We know that we have provided you with a forest, maybe two forests, and we really appreciate your spending the time to go through it. If you think back to the motion that we filed to continue -- and we appreciate Your DRAFT ONLY !!!! NOT PROOFREAD EFTA00792814

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor giving us time to understand what this case is about. The reason we need this time and we need your time today is because we are not sure what case we're trying. And we have to understand what case we're trying, Judge, in order to determine what evidence should come in. So with Your Honor's permission, I would like to just show you what I've put up here, so -- THE COURT: Do you have a hard copy of your PowerPoint? MR. LINK: Yes, sir. THE COURT: If I may have it. MS. ROCKENBACH: May I approach, Your Honor? I shared this with Mr. Scarola last evening. THE COURT: Thanks. MR. LINK: Your Honor, before we get to the blowup and the screen, I would like to just take a minute and talk to you about what we think the evidentiary issues we have raised in our motion that have to be resolved. The first is -- and I know Your Honor DRAFT ONLY !!!! NOT PROOFREAD EFTA00792815

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know -- you have told us this over and over -- you know the elements of malicious prosecution, and that you know them well, and they're well-settled. But when you read the papers you will see there is a disagreement about what those elements are. And so I just want to take a moment to go through them and find out -- what we really need to understand before we can try this case to a jury is this: what facts are in dispute that a jury has to decide. That's our struggle. So, Your Honor, the malicious prosecution, element one, the commencement of a proceeding, that is not an issue in this case. Element two. Was it filed by the present defendant -- the counter-defendant. Not an issue in this case. Item three. The bona fide termination in favor of the plaintiff. That is an issue in this case. That takes me to item two for one moment on my board, Your Honor, which is burden of proof. The counter-plaintiffs DRAFT ONLY !!!! NOT PROOFREAD EFTA00792816

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 suggest in their papers that once they prove the underlying claims by Mr. Edwards' three plaintiffs that were settled in 2010, that they have met enough to go forward and skip by the bona fide termination. The reason the bona fide termination is important is that that is the one area in the burden of proof -- the one area that shifts to us as -- THE COURT: If I'm not mistaken, are we talking about bona fide termination of the Epstein action brought by Epstein versus Rothstein and Edwards? MR. LINK: Yes. THE COURT: So why are we dealing with the underlying claims of the bona fide termination issue? MR. LINK: I don't know why we are, except that is part of the papers that we are dealing with. THE COURT: They are part of the papers, as I understand it, so as to establish a nexus between the reason why Mr. Epstein brought this claim in the first place against Rothstein and Edwards, and to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792817

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 try to determine the rationale that Mr. Epstein had to bring this case in the first place, which is a question that the jury is going to have, which is a question that the Court has, and what was the reason behind bringing this case. Was it one of vengeance? Was it one of hatred? Was it one of -- MR. LINK: Malicious. THE COURT: Malicious. Let me get to the point. Was it one of feeling that he was taking -- that the part of those whose investments were had by Rothstein as a result of that massive Ponzi scheme -- as he indicates in his deposition -- he felt that these people were taken advantage of as a result of Rothstein's misdeeds? I don't know what the reason was, and I'm sure the jury is going to ask what the reasons were. But there is going to be some introduction, albeit it tempered -- clearly tempered -- MR. LINK: Yes, sir. THE COURT: And Ms. Rockenbach I believe she was the signatory to the motion -- acknowledges that some of that DRAFT ONLY !!!! NOT PROOFREAD EFTA00792818

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 information is going to be in. There is no way we're going to be able to sanitize the case to that extent. MR. LINK: We wouldn't ask the Court to do that. THE COURT: So that's what I'm trying to understand. Why are we going there when it comes to bona fide termination? MR. LINK: The reason is that I want to make sure that we are all on the same page about whose burden of proof in the case, because that will make a difference about the evidence that needs to come in. THE COURT: I don't think there is any issue -- I don't believe Mr. Scarola is taking issue that initially the burden of proof is with the counter-plaintiff Edwards as to the determination or the showing that there was a bona fide termination of the case in his client's favor -- this case, meaning Epstein versus Rothstein and Edwards, and specifically Rothstein versus Edwards. Is that fair, Mr. Scarola? MR. SCAROLA: It's fair, Your Honor, that we acknowledge that we have the burden DRAFT ONLY !!!! NOT PROOFREAD EFTA00792819

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of proof with regard to every element. It is also our position that the issue as to whether the underlying claim was bona fiably terminated in favor of Bradley Edwards is an issue of law for the Court. There are no disputed -- Mr. Edwards is present, yes. There are no disputed issues of fact with regard to what happened, and therefore, the Court will need to make the legal determination as to whether that constitutes a bona fide termination. And we believe that that is an issue that has been resolved through the appellate process as well. THE COURT: Up to the point where there's a belief that the issue has been resolved through the appellate process as well, I agree with Mr. Scarola's position. At this point, in my view, ultimately it becomes potentially a legal issue. If the facts are clear and there's no factual dispute, then it becomes purely a legal decision as to whether or not there's been bona fide termination. MR. LINK: We agree 100 percent, Judge. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792820

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 100 percent. THE COURT: I don't want to deviate -- MR. LINK: I know. So I'm going to go to the next piece, which is the key, which is the absence of probable cause. And the absence of probable cause focuses here -- the absence of probable cause -- and this is what Your Honor was just talking about -- focuses here. December 7th, 2009. That's when Mr. Epstein brought his claim against Rothstein, Mr. Rothstein's firm and Mr. Edwards. THE COURT: Did he bring it against Rothstein's firm? I only have Rothstein individually -- MR. SCAROLA: Rothstein, individually and Bradley Edwards, individually. MR. LINK: My apologies. THE COURT: That statement is retracked. It's Rothstein individually and Edwards, individually. Mr. Scarola concurred and Mr. Link has now concurred. MR. SCAROLA: And L.M., which I think is of some significance also. THE COURT: Was she brought in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792821

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 originally? MR. SCAROLA: Yes. MR. LINK: She was, Judge. Here is our view of what we have to do when we look at the evidence we are going to show you -- the exhibit list, the testimony to come in -- is to focus on what the jury is going to have to decide. Again, I'm not sure what the facts are in dispute, but it's here. The only information that makes a difference is what Epstein -- what Epstein looked at; what he considered; the inferences he drew from that information; and whether when you take the totality of that information, Your Honor, he had a reasonable basis to bring a civil proceeding against Mr. Edwards. I don't think there is any dispute. I have read the Court's transcript where the Court has said -- the case against Mr. Rothstein, I understand that. I don't think anybody is disputing that. The question is was there sufficient -- THE COURT: Hold on. Hold on a minute. Let's not take my comments out of context. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792822

13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Whether or not there was ever any issues that Mr. Epstein had viably against either Rothstein, Edwards or L.M. are still, as far as the Court is concerned, unanswered. MR. LINK: Remember we have a default against Mr. Rothstein. THE COURT: That's a different issue. MR. LINK: I understand your point, Judge. THE COURT: I don't want my comments to be taken out of context. MR. LINK: Fair enough. THE COURT: A default is different than a court indicating some type of understanding as to Mr. Epstein's cause of action against Rothstein in this particular case. Because, as I said, the jury will question and the Court continues to question why Mr. Epstein brought this case in the first place. MR. LINK: Fair enough. Thank you for the clarification. THE COURT: And the reason why that's important is because the counter-plaintiff has argued that circumstantially -- and DRAFT ONLY !!!! NOT PROOFREAD EFTA00792823

14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 based upon, in large part, invocation of the Fifth Amendment by Mr. Epstein, they are going to need to prove that or disprove that potentially through the Fifth Amendment issues that we are going to be discussing. Because while Mr. Epstein may have his own motivation, circumstantially it is going to be up to the plaintiff to prove that motivation was not, in fact, in good faith. And I'm using good faith not as a term -- not as a legal term, but more of a term of art. MR. LINK: I understand that. THE COURT: So, it brings us to the point that we need to get to. So I am with you so far in terms of where you're going. And you're leading me through this. I appreciate it very much. But it does get us now to this really critical issue of, well, again, there's this huge question that's being asked by -- going to be asked by the finder of fact and the trier of the law, and that is, how does the counter-plaintiff prove its case when Mr. Epstein has answered selected questions? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792824

15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I was -- I am now paraphrasing Mr. Epstein's answers in large part. I found out that Rothstein was factoring these cases. I found out that these investors were being taken advantage of. Taken advantage of through the forging of an order -- forging of an order that purported to have the signature of Judge Marra -- a tremendously well-respected jurist in this community, now taken senior status. I, meaning Mr. Epstein, was not only concerned about Rothstein doing what he did, but also I had suspicions that Mr. Edwards was involved in this process, because there were some articles that discussed the query could Rothstein have done this alone, and implicated at least the cases -- not to my knowledge Mr. Edwards -- but the cases that Mr. Edwards was serving as lead counsel. Some before this particular court in division AB back in 2009 and that period of time -- perhaps just around that period of time. So there's going to be a large question in the trier-of-facts' mind and remains in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792825

16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the Court's mind. How was Mr. Epstein damaged by what transpired from the standpoint of Rothstein, or what may have transpired from his own mind as it relates to Mr. Edwards? That's going to be a huge question, and remains a huge question. What was Epstein doing at that time, meaning, why did he file this lawsuit? What was his damages? Why was he even doing this in the first place? That's going to create an issue. And the reason I bring it up is solely to get into the argument that's going to be raised by the counter-plaintiff Edwards. And that is how do we prove this where Epstein chooses to answer only certain questions regarding his motivation, i.e., malice, and probable cause? But it doesn't answer questions germane to his mindset that, okay, there were these factored cases by Rothstein. He's paying a severe price for what he did. The millionaire investors who got involved in this Ponzi scheme have clearly been damaged and restitution has been paid, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792826

17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to my understanding, to the extent that those assets of Rothstein's and those who were otherwise implicated paid what they paid. But how is Mr. Epstein damaged, and what was his motivation -- other than altruism, other than the questions that were asked by Mr. Scarola, which he didn't answer -- that could have been referencing a myriad of things: vengeance, anger, hostility. But they have that ability -- in my respectful view, in reading these materials -- to be able to raise those issues and perhaps through the Fifth Amendment Avenue. MR. LINK: Maybe, Your Honor. THE COURT: We need to concentrate on that. And we need to not only look at -- what I'm trying to say is, through Ms. Rockenbach's excellent written presentation -- MR. LINK: I helped a little bit, Judge. THE COURT: Actually, Mr. Link signed it. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792827

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LINK: There you. I took credit for it all, Your Honor. THE COURT: My apologies. MR. LINK: It was a little bit of me. THE COURT: We get in trouble when we assume. Irrespective of that, Mr. Link signed it. So you can tell I'm more concentrated on the body of work than who necessarily executed it. But what I am trying to say is, what I believe respectfully is being done here is it's a one-sided argument. Now, I agree that you have to zealously represent your client and take his side, and I have no problem with that. But what I'm also suggesting is, at the same time, there has to be some consideration and some concession that they have a viable -- I won't say viable claim -- but they have viable arguments to support what they are trying to accomplish. And the means to do that is largely hamstrung by Mr. Epstein's refusal to answer questions. Go ahead. MR. LINK: Thank you, sir. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792828

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Those are exactly the issues we have. And there's one thing, Your Honor, I think that I would ask you to consider. This is very important. And I will tell you that if you walk through these elements, this element right here -- this is the key -- the absence of probable cause does not take into consideration anybody's motive, their anger, their malice, their state of mind or anything else other than -- other than -- and we will get to malicious -- you are dead-on -- but probable cause is an objective standard. If the facts are not in dispute, it's an objective standard to be determined by this Court. That's what the Florida Supreme Court has told us. So, what's important -- what's important is the counter-plaintiff doesn't challenge that this information was available. They don't challenge that the information, when read, it says Rothstein was involved in a Ponzi scheme. It says Mr. Epstein's three cases were being used to lure investors and information about them was fabricated. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792829

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So there's not a dispute about that. The question is this. The question is, did Mr. Epstein have some reason to doubt or not believe the information he was reading. Because even though probable cause, Your Honor, is an objective standard, if I know what I'm reading is false, then I haven't really in good faith relied on it. But it doesn't matter. The case law says you cannot establish probable cause or the lack of it by the most actual malice known to man. I can hate this gentleman. I can want to bury this gentleman. I can want to run him out of business. But if I have objective probable cause -- THE COURT: And you are saying, as a matter of law, you are suggesting to me that newspaper articles -- which are the bulk of the reliance that Mr. Epstein is suggesting -- is sufficient to establish probable cause? MR. LINK: Yes, sir, I am. THE COURT: We are really not there yet because -- DRAFT ONLY !!!! NOT PROOFREAD EFTA00792830

21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LINK: I know we're not. THE COURT: -- this isn't a motion for summary judgment. MR. LINK: It's not. But I wanted to answer the Court's question. I think it's really important, Judge, as we go forward, that we differentiate the element of probable cause and the element of malice. Because you are exactly right. When you get to item five, malice, what's his intent to hurt Mr. Edwards. That is absolutely relevant for the jury's determination. No question. Okay. It is. But it is not relevant to whether there was a lack of probable cause. And that's a balance that we have here because -- THE COURT: What's not relevant in the absence of probable cause? Are you talking about malice? MR. LINK: Malice. Intent. We will show you cases, Your Honor, where it says if you have probable cause and you have malice, there's no claim for malicious prosecution. You only look at malice once you've established probable cause. You can't use DRAFT ONLY !!!! NOT PROOFREAD EFTA00792831

22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 malice to establish probable cause. You can, on the other hand, use probable cause to establish malice. THE COURT: I understand. MR. LINK: That makes sense? THE COURT: I understand you completely. MR. LINK: The reason that's important is because if you combine -- if you say, What's in his mind? How is he trying to hurt this guy? When he's reviewing the Razorback complaint, the U.S. Attorney's statement, and the newspapers articles that are out there, then you are combining malice and probable cause. So, that's what we have to avoid. It's really critical, and here is why. By the way, I want for the Court to know I really appreciate the hard work that Mr. Edwards' team has put in. They did a lot of writing. We did a lot of writing. We have crystalized the issues for this Court's determination. So one of the things that Mr. Edwards tells us in his response to our motion in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792832

23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 limine, he wants to tell us how he's going to try this case. And here is what he says. "Edwards starts by proving the truth of the claims he brought on behalf of his three clients." That evidence, Your Honor, if this case hadn't settled, would absolutely have been relevant to that trial, without a question. Every -- I shouldn't say every -- many of the questions that were asked of Mr. Epstein that he took the Fifth to very well could have been relevant to this lawsuit, okay? But the truth of the allegations that they were making has nothing to do with what Mr. Epstein reviewed in 2009 before he brought the suit. There's nothing that's in their mind or that happened to them that can have influenced Mr. Epstein when he was reading the material. THE COURT: So what you're suggesting, though, Mr. Link, is that there could never be a successful plaintiff in a malicious prosecution case. MR. LINK: No, sir. I'm not suggesting DRAFT ONLY !!!! NOT PROOFREAD EFTA00792833

24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that at all. I will give you an example. What if this lawsuit was filed and there were two articles that existed that said that Mr. Edwards had nothing to do with the Ponzi scheme. And Mr. Epstein, in looking at the information that was available, took that information -- or he knew Mr. Edwards wasn't involved at all in any way -- and I'm not telling you that Mr. Edwards was. I am saying based on the information at that time -- THE COURT: Where was that information, by the way, that suggests Mr. Edwards had involvement? MR. LINK: The information that suggests that he had involvement is this. MS. ROCKENBACH: Your Honor, may I approach? I have a copy that might be better for the Court. I shared this with Mr. Scarola yesterday. MR. LINK: Your Honor asked a great question. It is without a doubt nothing in the press or the U.S. Attorney's office or anywhere else that comes out before Mr. Rothstein goes down that connects DRAFT ONLY !!!! NOT PROOFREAD EFTA00792834

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 directly Mr. Edwards to the Ponzi scheme. It does not. So what we have to then look at is this information. So you have as your backdrop -- put yourself in Mr. Epstein's shoes for a minute. You have as a backdrop your reading that the three cases that you have are being used to solicit investors, and you're being told that you have already offered a $30 million settlement, which was untrue. That you've already agreed to pay $200 million, which was untrue. That there were 50 other claimants out there at the Rothstein firm, which were untrue. And you read all of that, and then you start thinking about what's happened in the litigation against you. In the litigation against you, you start to see things that are different from when Mr. Edwards was a sole practitioner. THE COURT: Freeze that phrase for a moment. MR. LINK: Yes, sir. THE COURT: When you think about the litigation that was brought against you -- DRAFT ONLY !!!! NOT PROOFREAD EFTA00792835

26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 when you are saying what Mr. Edwards brought against Mr. Epstein, correct? MR. LINK: Yes, sir. THE COURT: Very well. MR. LINK: Yes, sir. That's what I'm talking about. THE COURT: I want to make sure that that is what you're saying. MR. LINK: We're on the same page. Edwards' clients versus Mr. Epstein. And you look at the time period that Mr. Edwards is at Rothstein's -- this is really the question. I think it's a legal question. The question is, was there sufficient smoke for you to think there could be fire? Was there sufficient information that you could draw a reasonable inference from that would allow you to bring a civil claim? And here is what we see. We see many different things that happened. So, for example, all of a sudden you have Mr. Edwards and his team saying they want to depose Donald Trump, Bill Clinton. And there wasn't any testimony from the three folks that Mr. Edwards represented DRAFT ONLY !!!! NOT PROOFREAD EFTA00792836

27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that they had any contact with Mr. Clinton or Mr. Trump, or any of the other folks that they said they wanted to depose. The three folks that Mr. Edwards represented never said they were on one of Mr. Epstein's planes, yet they spent 12 hours deposing Mr. Epstein's pilot and didn't ask a single question about Mr. Edwards' clients. He had a state court case filed on behalf of L.M. He then files a 234-page federal court complaint with 100-and-some counts that he never serves. He then files a motion for fraudulent transfer in the federal case saying Mr. Epstein is fraudulently transferring assets, and lists in there all these assets he has. And Judge Marra denies it and says this was brought without any evidence whatsoever. So if you look at these things that happened, and you now have them in the context of, wait a minute, I just read that Rothstein was telling folks that these cases were worth $500 million, and Mr. Epstein has DRAFT ONLY !!!! NOT PROOFREAD EFTA00792837

28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 already offered $200 million. And that's not enough. We are going to get more. If you are Mr. Epstein, you start thinking, Well, was all of this stuff being done to generate information to show the investors in the Ponzi scheme? Then we know that the flight logs that came from the pilots, that had nothing to do with the three plaintiffs that Mr. Edwards used were used by Rothstein to show investors. THE COURT: But couldn't that same information, Mr. Link, serve the counter-plaintiff as well as it might serve Mr. Epstein, which creates a potentially classic jury question? And that is, that all of these things that were done -- the inconveniencing of his pilots, the inconveniencing of his high-level friends, the implications of these high-level friends -- all of these things that were done to anger Mr. Epstein at or around the time, if my memory serves, when these cases were being settled -- doesn't that serve them just as well to create an issue of probable cause as it does your client to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792838

29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 say, Well, all of these things were done? And it then gets us back to what I earlier asked, and that is, even if that's taken as true, even if Rothstein was pumping these cases up and claiming to these investors that it was then publicly known through primarily the press, media was swarming -- as they should have been -- over this absolute criminal act, the likes of which, from an economic standpoint, from a private individual, perhaps has still never been seen before, other than Mr. Madoff in New York. But the point I'm trying to make is, it still gets me back to that same question. Yeah, Mr. Epstein may have been angry, he may have been concerned about his friends, the high-level people that he associated with, and how this could drag him down as well as them. Certainly a bona fide concern, perhaps. But then it gets to the question, yeah, with all of that, it still gets me to my original question and what the jury is going to be asking, more importantly, how was DRAFT ONLY !!!! NOT PROOFREAD EFTA00792839

30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Epstein damaged as a result of this activity? MR. LINK: May I answer that question? But then I have to weave back, because you gave me something I have got to talk about. THE COURT: Sure. MR. LINK: The damage that he felt -- now, let's keep in mind what case we're trying today -- or will be trying -- which is whether there was probable cause to go forward. THE COURT: Against Mr. Edwards? MR. LINK: Against Mr. Edwards. We are not trying the case against Mr. Edwards. We don't have to prove who would have won that case. So I'm going to get back to that in a sec. What he thought his damages were at the time, his real dollar damages is that he was spending money paying lawyers to defend what was happening during this Rothstein period. And so if you connect the dots and say, okay -- you said it better than I did, Judge. Rothstein is doing these criminal activities, which included using my name, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792840

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 three legitimate lawsuits -- THE COURT: Who is my? MR. LINK: Mr. Epstein. THE COURT: Okay. MR. LINK: I keep trying to make you Mr. Epstein for my example. It's the only way it works for me. If you're Mr. Epstein and you see -- Judge, you see what's in the press and how your -- I want to make this clear. We have never challenged when Mr. Edwards filed them that he didn't have a good faith, legitimate basis to do so back in 2008. That's not what this case is about. But in 2009, if you're Mr. Epstein and you see all of this information and you look at what's happening here and you say, Have I spent legal fees, paid my lawyers in order to have to defend activity that was really designed not to benefit the three plaintiffs, but to let Rothstein take it and show investors? And we know, as a matter of fact, Judge, that Rothstein did it. He used bankers boxes from the Epstein cases. He DRAFT ONLY !!!! NOT PROOFREAD EFTA00792841

32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 used flight manifests from the Epstein cases. So he actually used the information that was provided to him by Mr. Edwards to show investors. This is going to answer your question. This is key. I think I remember your question. This is key, if I remember your question. You said what if Mr. Edwards had a legitimate purpose? I believe Mr. Edwards can get on the stand and persuade you, Judge, he had a reasonable basis for doing everything he did. THE COURT: I didn't ask that question. MR. LINK: Well, you said what if he had a legitimate basis? What he was doing was trying to benefit the three folks. THE COURT: No. What I said was, couldn't that information that you just indicated to me that forms the basis for Mr. Epstein allegedly bringing this suit, could that not be -- could that not be utilized by Mr. Edwards to submit to the fact that -- submit the fact that the reason why Epstein brought this suit in the first place was one of trying to get back at DRAFT ONLY !!!! NOT PROOFREAD EFTA00792842

33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Edwards for inconveniencing his friends, for dragging those friends -- high-level friends into the process, for inconveniencing his pilots? All of these things that I brought out. That was the point that I made. MR. LINK: What element of the claim is that for? What element? That's malice. It's not probable cause. What Mr. Edwards thought, what he did, why he did it, has nothing to do with probable cause. It may have, Your Honor, a lot to do with malice. THE COURT: I think it has a great deal to do with probable cause, quite frankly. I think it's a mixed bag, so to speak, when you get to probable cause and malice. I agree with you that probable cause has to be proven before malice. But I think that there are -- certainly, in a case like this, which is an extremely unusual and complex matter that there are lead-overs, if you will, as it relates to probable cause and the malice elements. And I don't think it can be disputed here. This is not like the simple cases that we read in Florida Jurisprudence that deal with malicious DRAFT ONLY !!!! NOT PROOFREAD EFTA00792843

34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 prosecution the more simple concrete-type of cases that sets one plaintiff against one defendant. This is different. And I think that the issue of malice and probable cause are going to be somewhat congealed and somewhat of a lead-over from probable cause to malice. Not vice versa. I understand the parameters legally in that regard. MR. LINK: I agree with everything you just said except -- without incurring the wrath of the Court -- I have to dispute the first part you said because I don't believe, Your Honor, that the law is, what's in Mr. Edwards' mind -- what's in Mr. Epstein's mind about his reasons for bringing the case, have anything to do with probable cause. I think they have everything to do with a malice. And the law is very clear. You can't use malice to demonstrate probable cause. So if you can't use malice, what difference does it make how much Mr. Epstein may have hated Mr. Edwards and wanted to do him harm? MR. SCAROLA: I thought that you were DRAFT ONLY !!!! NOT PROOFREAD EFTA00792844

35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pausing, and I wanted to raise a procedural question. If you are pausing -- MR. LINK: No problem. I never know when I'm pausing either. MR. SCAROLA: I have the same problem. Your Honor, I'm a little bit confused about the direction that that argument is taking, because I thought we were arguing a motion in limine to exclude evidence. And once there's a concession that the evidence is relevant to malice, even if we accept -- and I don't -- that it's not relevant to probable cause, it's relevant and it comes in. So I suggest that, since we have had an on-the-record concession of the relevance of the evidence, that part of the argument is over. THE COURT: Well I think Mr. Link -- I am giving him latitude, because I interrupted him to ask these questions that really needed to be answered from my standpoint. And as I look at these cases that are going to trial, I also try to put myself, not in either parties' shoes, but DRAFT ONLY !!!! NOT PROOFREAD EFTA00792845

36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 certainly in juries' shoes when it comes to questions that they're going to have, and that really needs to be answered, because it helps me to narrow the issues as well. So I appreciate your courtesies in that respect. MR. LINK: My pleasure, Your Honor. THE COURT: Let's go ahead -- and if we could, let's get to the core issues that we're dealing with today and see where we are, because Mr. Scarola also makes a good point. I mean, a lot of this material that seems to be a matter of your motion when it comes to excluding this testimony or this evidence, it's essentially been conceded that most of this evidence is going to be relevant. MR. LINK: I didn't say that. I want to be very clear. I did not say that the evidence that he wants to submit or the questions he asked or the exhibits that he listed should come in on malice. What I said to the court is that Mr. Epstein's state of mind and how much he would have disliked Mr. Edwards or wanted to hurt him would be relevant to malice. That's very DRAFT ONLY !!!! NOT PROOFREAD EFTA00792846

37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 different than asking the question about do you have a preference for minor children. THE COURT: So if we can, move now to issues of evidence that is being sought to be limited in terms of its introduction to the jury. MR. LINK: Yes, Your Honor. My partner Ms. Rockenbach will handle that. And, Your Honor, just so the Court's aware, Ms. Rockenbach has a professionalism meeting at Mr. Scarola's office that starts at noon. Do you mind breaking at 11:45? THE COURT: That's fine. I have a court luncheon, as well, with my colleagues down in the judicial dining room at noon, so that's not a problem. MS. ROCKENBACH: Your Honor, I would like to take the first issue in the omnibus -- revised omnibus motion in limine. But before we talk about Fifth Amendment, I just want cite one case to Your Honor before we leave this arena of probable cause. When I was reviewing the case law in preparation for this hearing, I chuckled to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792847

38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 think that the Florida Supreme Court in 1926 called this an ancient action, malicious prosecution. But it is that very case that answers a point that Your Honor was just discussing. I'm talking about the Tatum Brothers case. And it says in Tatum Brothers -- THE COURT: Do you have a tab number for me? MS. ROCKENBACH: The tab number is -- I don't know that actually. I might be able to get that. THE COURT: If it's in your binder, I can probably find it. You did a good job with your -- MS. ROCKENBACH: The index. THE COURT: -- index. Yeah. I don't have a Tatum Brothers by that first name. MS. ROCKENBACH: I apologize, Your Honor. It's at 92 Florida 278, and it's published in 1926. The court said it is well established that want of probable cause cannot be inferred from malice, however great such malice may be, even the most express malice. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792848

39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So before we leave that arena, that case back in 1926 said that you can't go backwards. You can't find malice then infer probable cause. THE COURT: I understand. I am just making a point that, in this set of unusual facts, it's not necessarily a clear-cut distinction that can be drawn. But again, sometimes facts will create these types of issues and they will be different than the 1926 set of facts. But go ahead. MS. ROCRENBACH: This is true. So, Your Honor, the first issue about the Fifth Amendment, I want to be clear that with regard to probable cause, my client has an original complaint that was filed against Mr. Edwards in December of 2009. He obviously didn't raise any Fifth Amendment with regard to any allegations that he filed in public court. He also filed two affidavits. Did not raise any Fifth Amendments with regard to the statements and facts that he alleged in those affidavits, one in 2013; and then the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792849

40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 most recent, 2013. There's a pending motion to strike the 2017 set for these pending motion hearings. There was never any type of attack on the 2013 affidavit and they are substantially the same. The third issue about substantive testimony that my client gave that goes to the probable cause issue were the two depositions in which Mr. Scarola deposed Mr. Epstein. And that first one was March 17, 2010 -- and it's in the court file -- it was approximately three hours. And it's important, Your Honor, just if the Court would indulge me to read a few answers, because the point here is -- I should have started with this. If I may use the easel. So really there were two categories of questions that were asked of my client by Mr. Scarola. Some pertain to Fifth Amendment, which he raised, and some pertain to the malicious prosecution action. My client substantively answered in that March 17, 2010 deposition -- under the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792850

41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 column of malicious prosecution -- page 19, Mr. Scarola asked, "Your complaint in this action" -- he's referring to the malicious prosecution action -- "alleges that L.M. made claims for damages out of proportion to alleged damages. What does that mean?" "It means what it says." Mr. Scarola: "I don't understand it. Explain it to me." Mr. Epstein substantively answered questions related to his probable cause for instituting the civil proceeding of malicious prosecution when -- "I believe that as part of the scheme to defraud investors in South Florida out of millions of dollars, claims of outrageous sums of money were made on behalf of alleged victims across the board, and the only way, in fact, Scott Rothstein sits in jail. And what I have read in the paper, claims that I settled cases for $200 million, which is totally not true. She has made claims of serious sums of money, which is outrageous." He answers the questions, "Have you settled claims?" "Yes, I have." DRAFT ONLY !!!! NOT PROOFREAD EFTA00792851

42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 23 of the same deposition. My client substantively answers the probable cause question for why he brought -- and Your Honor asked the question -- why did Mr. Epstein file this malicious prosecution action? He told Mr. Scarola back in 2010 -- on page 23, Mr. Scarola said, "Did Brad Edwards do anything that he shouldn't have done that forms the basis of your lawsuit against him?" "Yes, many things." "List them for me, please." "He has gone to the media out of, I believe, an attempt to gin up these allegations. He has contacted the media. He has used the media for his own purposes. He has brought discovery. He has engaged in discovery proceedings that bear no relationship to any case filed against me by any of his clients. "His firm, which he is the partner of, has been accused of forging a federal judge's signature." Those are but two -- just two that I have taken and the Court has indulged me in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792852

43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reading substantive answers. THE COURT: Believe me, I have read these over and over again. They're segregated in various motions that I have been privy to, and I also have read the transcript in full relative to Mr. Epstein's questions. The point that I tried to make with Mr. Link was that, number one, if as a court as a system of jurisprudence, we simply rely upon the contentions of the now defendant in a malicious prosecution claim as to probable cause, then there would really be, essentially -- there would be no malicious prosecution claim that would be brought. Secondly, I understand that it is the plaintiff's burden of proof. Now, if it's a pure legal question, the Court will deal with that accordingly. But at least for now we understand that it's the plaintiff's burden to prove as to probable cause. The point that I made and tried to make with Mr. Link was if a defendant in a malicious prosecution claim -- and I think some of these cases speak essentially to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792853

44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that issue -- takes the Fifth Amendment in similar types of cases, then the plaintiff's position will never really be made known, unless there's an introduction to some degree of the fact that to certain questions -- now graphic sexual questions, the likelihood is I am not going to allow those into evidence. MS. ROCKENBACH: Understood. THE COURT: I haven't heard from Mr. Scarola, so I don't want to suggest that I am prejudging anything. But there is a bar that we need to respect as it relates to the difference between relevant evidence and a 403. I get it. But at the same time, I think as the judge, as opposed to an advocate, and taking into consideration both sides' positions, I have to recognize that there is a definitive and direct correlation between the invocation of Fifth Amendment rights as to issues that would go to proof of probable cause relating to the plaintiff's claim, and not simply take Mr. Edwards' (sic) contentions at face value. Because in DRAFT ONLY !!!! NOT PROOFREAD EFTA00792854

45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 circumstances, such as this one where the Fifth Amendment has been discussed -- and in the vast majority of cases has -- Did I misstate something? MR. SCAROLA: Yes, sir. You said Mr. Edwards. You meant Epstein, I'm sure. So the record is clear, I thought it appropriate to correct that. THE COURT: We have all made those mistakes. I knew it was going to happen. I apologize for it. I caught myself once before. I apologize. Madam Court Reporter, could you just read back where I started with questioning Mr. Rockenbach, please? (Thereupon, the requested portion of the record was read back by the reporter as above duly recorded.) THE COURT: With the vast majority of cases that have dealt with this tension, the allowance on a limited basis of the invocation of the Fifth Amendment makes perfect sense, because logically it is a way for the plaintiff in the malicious prosecution claim -- Edwards -- to be able DRAFT ONLY !!!! NOT PROOFREAD EFTA00792855

46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to prove the case -- at least prove probable cause. It makes sense. And if I can divine common sense from these cases, then I feel I have made some reasonably decent strides. But it makes sense. I don't know if you can really argue with that logic. MS. ROCKENBACH: I don't, Your Honor. There's a caveat. We agree with the Court, and we would rely on two cases for this point, because we are talking about -- the reason I drew that line for Fifth Amendment and malicious prosecution is we're talking about whether Mr. Edwards can, in this malicious prosecution case, read questions to the jury that my client took the Fifth Amendment to and draw a negative inference therefrom. The US Supreme Court in Baxter -- that's the case -- that's the Fifth Amendment case -- it says, "It's key that there's independent evidence existing of the fact to which the parties refuse to answer." That's one building block for this issue. The second building block is a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792856

47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Fourth DCA decision called Frazier versus Security and Investments, 1993. What does Frazier tell us? Not only do we build off the US Supreme Court and say you have to have independent evidence in order to use this Fifth Amendment adverse inference, but Frazier says that this adverse inference is limited against parties when they refuse to testify in response to probative evidence offered against them. Probative evidence offered against them. We looked at those three rings earlier. This lawsuit here is not the ring involving -- I am going to say them all wrong -- E.W., L.M. and Jane Doe. It's not. This is the malicious prosecution ring and suit. So the reason I read some excerpts from Mr. Epstein's deposition to Your Honor is to show that he didn't take the Fifth Amendment on issues relevant to why he filed the malicious -- why he filed his civil proceeding, the underlying suit for this malicious prosecution case against Mr. Edwards. He substantively answer those DRAFT ONLY !!!! NOT PROOFREAD EFTA00792857

48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 questions. What he didn't answer were questions that would fall in the Fifth Amendment column that would be relevant in those three claimants' lawsuits or claims or criminal action. In that substantive three-hour deposition taken of my client, he was asked, "How many children have you sexually abused?" Have you ever sexually abused children? Have you ever socialized with -- and then he was asked about public figures -- the governor of New Mexico? "On how many occasions did you solicit prostitution? How many prostitutes do you contend you solicited? How many minors have you procured for prostitution. These are questions -- How many times did you engage in oral sex with females under age 18?" These have no relevance to the malicious action. And those are the very questions that we are asking Your Honor to not only preclude from being admitted to -- into evidence or any reference in the malicious prosecution, but also to preclude DRAFT ONLY !!!! NOT PROOFREAD EFTA00792858

49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Edwards from using the Fifth Amendment right against self-incrimination when those very questions have, A, no probative value in this lawsuit, no probative evidence, whatsoever; and B, there is no independent evidence -- THE COURT: I knew you all worked very hard in having produced these materials, and you all got involved somewhat late in the game, but what I didn't get is a definitive list of questions and answers that are sought to be excluded. Globally, as I indicated, and thus far, my inclination is not to allow those types of questions to be asked of Mr. Epstein or to be utilized as -- to be published to the jury. However, questions that deal with the fact that suits were brought against Mr. Epstein by at least the three people that were brought -- other suits that were brought against Mr. Epstein either by minors or by women of age that were actually filed or claims that were made and were paid by Mr. Epstein, those types of questions, I DRAFT ONLY !!!! NOT PROOFREAD EFTA00792859

50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 believe, are going to be of probative value, which is essentially relevance, defined as tending to prove or disprove a material fact. What's the material fact? You can answer it or I will answer it. MS. ROCKENBACH: I have a question for Your Honor. But go ahead. THE COURT: What I would perceive to being the probative issue or the relevance gets to why Mr. Epstein brought this claim in the first place. A basic question, as I mentioned before, that the jury is going to have and the Court has, and for them to be hamstrung from asking those questions, flies in the face, as far as I'm concerned, of the majority of the cases that I have read that touch on these types of cases. They may not be a specific malicious prosecution case, but the logic still is maintained. You see? It can be differentiated -- some of these graphic questions that I'm not going to repeat here, but are a matter of public record and are in the materials far more graphic than what you have given us as DRAFT ONLY !!!! NOT PROOFREAD EFTA00792860

51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 exemplars -- and I respect the fact that you didn't need to bring those into the record today. But what I am saying is that it goes back into the logic that I described earlier. MS. ROCRENBACH: Your Honor mentioned two categories -- THE COURT: And I'm not -- excuse me for a moment. I apologize for that. But I'm not trying to be definitive as far as the categories that are going to be or not be allowed. What I'm trying to give you is some type of global perspective, because, as I said before, unfortunately, whether it's time or whatever it may have been, the questions, to my knowledge, have not been segregated out. So as to go through on a question-by-question basis, yes or no. That may have to be done at a later time. But what I'm trying to do is indicate to you that from a jury perspective, they are going to need to know what fueled potentially, Mr. Epstein. Was it what he says, or at least from a circumstantial DRAFT ONLY !!!! NOT PROOFREAD EFTA00792861

52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 standpoint, and based upon his refusal to answer questions germane to those three pseudonym -- the pseudonyms used by those plaintiffs and others who have brought claims -- I don't think those three cases, to my recollection, were the only three cases that were brought -- maybe by Mr. Edwards. MS. ROCKENBACH: They were the only ones brought by Mr. Edwards. And that leads me to the point -- I was going to jump back with Your Honor and say, you identified two categories and you said it's potentially relevant and probative to discuss those three that were the three lawsuits and others. THE COURT: Are you going to tell me that he -- part of -- Mr. Epstein did not bring any cases against any of the other lawyers? Is that what you're going to suggest? MS. ROCKENBACH: Number one, that is true and correct and accurate. He did not. And those other cases -- any other claims that were not being represented by DRAFT ONLY !!!! NOT PROOFREAD EFTA00792862

53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Edwards, they have no relevance to Mr. Epstein's lawsuit that he brought in December of 2009. THE COURT: You can argue that. I have no problem with that argument. MS. ROCKENBACH: But, Your Honor, as you've recognized, Your Honor is the gatekeeper. And introducing evidence that has absolutely no probative value and no relevance would be very harmful, inflammatory and clearly prejudice my client from -- THE COURT: I understand the point. You can proceed. MS. ROCKENBACH: Thank you, Your Honor. MR. LINK: Your Honor, can I offer a suggestion based on what I have heard? THE COURT: Any objection, Mr. Scarola? MR. SCAROLA: No, sir. THE COURT: Yes, sir. MR. LINK: Your Honor raises a good point, which is, without the specific questions in front of you, it makes it more difficult. And I do apologize. You're right. We DRAFT ONLY !!!! NOT PROOFREAD EFTA00792863

54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 scrambled up until 10 o'clock the night before Thanksgiving. THE COURT: That's why I wasn't criticizing anybody for not having -- MR. LINK: And we didn't take it that way, Judge. But I do think it would be helpful for the Court and for the parties if we go through the questions and the answers -- there's not that many of them, frankly -- and have the Court make a ruling, because without doing it question by question from the depositions, you are giving this general guidance, but it doesn't help us get ready for the jury trial, Your Honor. THE COURT: I agree. I agree. And I have no problem with that. We have set aside several days in order to deal with that. But we can talk about the general theory of the utilization of the Fifth Amendment and how that is going to be presented to the jury. So let's go on and proceed further, please. Thank you, Mr. Link. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792864

55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LINK: Thank you, Judge. MS. ROCKENBACH: Thank you, Your Honor. I have provided Your Honor with the law that really is central and core to your gatekeeping function under 90.401 and 403. And the point is that there's no probative evidence. These Fifth Amendment questions that were asked of my client -- THE COURT: No probative value. MS. ROCKENBACH: No probative value. And the Frazier -- the Fourth DCA says that even that adverse inference against parties when they refuse to testify in response to probative evidence offered against them. If my client had taken the Fifth Amendment when Mr. Scarola asked a question about what did Mr. Edwards do to wrong you? How did he abuse his license to practice law, and my client said Fifth Amendment, absolutely, that is a question that would not only get read, it would get the adverse inference. But the questions that were asked of my client have zero probative value and are not anything related to the issues of probable DRAFT ONLY !!!! NOT PROOFREAD EFTA00792865

56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cause in this action. So I might suggest that since Mr. Scarola is the proponent of those questions and that evidence, that he would identify questions that he wants to present to which my client pled the Fifth. Before I stop speaking, though, just one other point. Mr. Edwards wants to use my client's invocation of the Fifth Amendment as a gag order on the column of malicious prosecution answers, meaning, in one of his motions it's to strike the affidavit. And to be clear to the court, we are not submitting an affidavit as testimony at trial. We wouldn't do that. But it is a blueprint for what my client would testify to, as is the complaint that my client filed against Mr. Edwards. Those were the allegations and the facts and circumstances, which goes to probable cause that Mr. Epstein relied on in December of 2009. So Mr. Edwards is moving to strike the affidavit, and based on the Fifth Amendment, says that my client can't DRAFT ONLY !!!! NOT PROOFREAD EFTA00792866

57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 use it sword and shield. My client is not using Fifth Amendment as sword and shield whatsoever. In the example I gave Your Honor, that would be a sword and shield if my client refused to answer the question of why he filed the original proceeding against Mr. Edwards in December of 2009, why he instituted that action, Fifth Amendment, that would be a sword and shield, and they could get an adverse inference. So part of my omnibus -- revised omnibus motion in limine and the response to, I think, Mr. Edward's motion to strike my client's affidavit, implicates the Fifth Amendment. THE COURT: We will take up with the striking of the affidavit separately. MS. ROCKENBACH: Okay. THE COURT: I don't think -- MR. SCAROLA: That issue is moot. The affidavit is not going to come into evidence, obviously. It was moved to be stricken as support for a motion that has already been denied. So I don't know why DRAFT ONLY !!!! NOT PROOFREAD EFTA00792867

58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 we're talking about striking the affidavit. MS. ROCKENBACH: Good. Then it seems that it's moot by Mr. Edwards and we will move on. But we wanted to make sure that that testimony that's provided in the affidavit should not be under some type of gag order. My client should be able to testify as to what -- why he had probable cause. THE COURT: My position, before Mr. Scarola mentioned its mootness, was that as long as the information that's set forth in the affidavit, which by the way -- and it's not uncommon -- as brilliant as both sides are, I didn't have a copy of the affidavit. MS. ROCKENBACH: I apologize to the Court for that. THE COURT: It's okay. While it may have been attached somewhere -- one other thing. I don't know why Mr. Scarola, from your office, I didn't receive any binder or anything else. I had to, last night, copy the replies and the responses to take home with me. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792868

59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. SCAROLA: We work in a binder-free zone, Your Honor. THE COURT: That's fine. But I do require -- because most -- as last night -- most of my preparation is done at home. And I'm so tired of looking at computers that it's much easier for me to have the hard copies. I know others are much more computer savvy when it comes to those kinds of things. But I just find it more comfortable to be able to have something in my hand and read it. If you can kindly go ahead and forward them to me so -- last night getting the responses and having my JA I commend her for staying as late as she did last night and getting all of that material and helping getting it all marshaled -- Again, I just wanted to gently remind you folks that I may do things differently than others in the sense that I still like to have hard copies and not to sit there in front of a computer later in the evening. Anyway. Sorry I got off on that tangent. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792869

60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Did you want to add anything else? MS. ROCKENBACH: Yes, Your Honor. As part of that omnibus motion in limine, we somewhat moved on from the Fifth Amendment questions and answers, because I think Mr. Scarola may want to tee up for the Court what precise questions that he is seeking to admit and introduce into evidence, so that Your Honor can rule on each one. Perhaps we can take that up after lunch. I'm not sure if that works. THE COURT: I would like to hear some of Mr. Scarola's arguments now. I would like to get into the global issue of the Fifth Amendment, as well as parameters that he believes are appropriate as it concerns the nature of the questions that are going to be sought to be introduced and the invocation of the Fifth Amendment and where we stand currently. Because if I'm understanding correctly, because of the pendency of that federal lawsuit, essentially Mr. Epstein is going to be taking the same position now as he has in the past? DRAFT ONLY !!!! NOT PROOFREAD EFTA00792870

61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MS. ROCKENBACH: With regard to the Fifth Amendment? THE COURT: Yes, ma'am. MS. ROCKENBACH: Yes, Your Honor. That's correct. I want to make sure. But not with regard to any probable cause questions, like those that were asked in his depositions, to which he did not invoke the Fifth Amendment. They were relevant questions to this action. He will not be invoking the Fifth as to those questions. But yes, consistent with the questions that were asked of him in his deposition, to which he invoked the Fifth, he will be doing that again. THE COURT: And you're not, at this point -- because I know that the counter-plaintiff Edwards was concerned about retracting any of his Fifth Amendment invocations. That is not planned at this juncture? MS. ROCKENBACH: That's correct, Your Honor. THE COURT: So that obviates, then, the need for Mr. Scarola to redepose DRAFT ONLY !!!! NOT PROOFREAD EFTA00792871

62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Epstein? MS. ROCKENBACH: Correct. THE COURT: Mr. Scarola, thank you for your patience. You may proceed, sir. Thank you, Ms. Rockenbach and Mr. Link, for your written and oral presentations. MR. SCAROLA: Thank you very much, Your Honor. If you don't mind, I'm going to stand at the podium that says, Plaintiff. Your Honor, there is a very fundamental disagreement between present counsel for Mr. Epstein and Mr. Edwards. You heard Mr. Link say -- and I think I took down the quote exactly -- we have never challenged that these three cases were legitimate cases. Well, I can understand why it is that at this point in the litigation, Mr. Link wishes that they had never challenged that these three cases were legitimate cases. But the fact of the matter is that Bradley Edwards was sued for ginning up, fabricating, constructing those three cases, and others, as a knowing participant in Florida's largest ever Ponzi scheme, that DRAFT ONLY !!!! NOT PROOFREAD EFTA00792872

63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is, there were two clearly identifiable allegations of wrongdoing contained within the complaint filed by Bradley Edwards. He was alleged to have fabricated these cases. And it was alleged that the reason why he fabricated the cases was as a knowing participant in the Ponzi scheme. I can provide the court -- and I will do that -- with a copy of the complaint that was filed in this action. We've highlighted various allegations in that complaint, Your Honor, that specifically include the assertions that Bradley Edwards was involved in manufacturing, fabricating, ginning up these claims. In paragraph seven, it is alleged that L.M. was an essential participant in the scheme referenced in this complaint, by among other things, substantially changing prior written sworn testimony so as to assist the defendants, plural, in promoting their fraudulent scheme for the promise of a multi-million dollar recovery relevant to civil actions, defined below, involving Epstein, which was completely out of DRAFT ONLY !!!! NOT PROOFREAD EFTA00792873

64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 proportion to her alleged damages. If we go to paragraph 30, "By using the civil actions against Epstein as bait and fabricating settlements regarding same, Rothstein and others were able to lure investors into Rothstein's lair and bilked them of millions of dollars which, in turn, were used to fund the litigation against Epstein for the sole purpose of continuing the massive Ponzi scheme." "The sole purpose of continuing the massive Ponzi scheme." These weren't legitimate claims. They were being used solely to fund the Ponzi scheme, according to the allegations. Thirty-one. "As part of this scheme, Rothstein and the litigation team" -- and the litigation team is defined in the complaint as Brad Edwards. Paragraph E: -- "utilized the judicial process, including, but not limited to, unreasonable and unnecessary discovery for the sole purpose of furthering the Ponzi scheme." Forty. "Edwards filed amended answers DRAFT ONLY !!!! NOT PROOFREAD EFTA00792874

65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to interrogatories in the state court matters, E.W. and L.M., and listed additional high-profile witnesses that would allegedly be called at trial, including, but not limited to:" And then various individuals are identified. And then paragraph 41. "The sole purpose of the scheduling of these depositions was, again, to pump up the cases to investors. There is no evidence to date that any of these individuals had or have any knowledge regarding RRA's civil actions." THE COURT: For the record, that's a quote from paragraph 41, as opposed to argument. MR. SCAROLA: Thank you. Sir. I'm sorry. If we go to page 18 of the complaint, subparagraph H. "Rothstein" -- and again, this is a quote. "Rothstein and the litigation team knew or should have known that their three filed cases were weak and had minimal value for the following reasons." DRAFT ONLY !!!! NOT PROOFREAD EFTA00792875

66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Those reasons are listed. Again, questioning the legitimacy of the claims. Page 21, paragraph 44. "The actions described in paragraph 42 above herein had no legitimate purpose in pursuing the civil" litigations (sic) "against Epstein, but rather were meant to further the fraudulent scheme and criminal activity of Rothstein." Paragraph 46, the last line. "RRA and the attorneys in the civil actions" -- Please remember, the civil action is a defined term in the complaint. It's L.M., E.W. and Jane Doe's claims -- "needed to create a fiction that included extraordinary damages. However, the actual facts behind her action would never support such extraordinary damages." Going down to the last sentence in subparagraph A. "Under the circumstances, her claim for damages against Epstein, one of L.M.'s many johns during that same period, would be so incredible and certainly not likely to produce the extraordinary settlements promised to RRA's investors." DRAFT ONLY !!!! NOT PROOFREAD EFTA00792876

67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Paragraph 49 of page 27, second sentence. "Rather than evaluating and resolving the cases based on the merits, that is, the facts, which included knowledgeable, voluntary and consensual actions by each of the claimants and substantial pre-Epstein psychological and emotional conditions," et cetera. So again, the allegation is that these children were knowledgeable, voluntary and consensual participants. THE COURT: Let me ask you this. My memory is good, but not great. The three litigants that Mr. Edwards represented and perhaps still represents -- L.M., E.W. and Jane Doe -- were they all allegedly underaged at the time of these encounters? MR. SCAROLA: Yes, sir, they were. So that obviously, as a matter of law, they were incapable of consenting. The last sentence I want to reference in this case, Your Honor, appears at page 30. The last sentence in paragraph 52, in order to continue to bring in moneys from investors, Rothstein and other DRAFT ONLY !!!! NOT PROOFREAD EFTA00792877

68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 co-conspirators used the civil actions against Epstein, along with other manufactured lawsuits, as a means of obtaining massive amounts of money." So when opposing counsel tells you, We have never challenged that these three cases were legitimate, again, while I understand why they wish that were true, that is not true. And when Mr. Epstein was deposed in this action, Mr. Epstein was asked about what he meant when he testified that these cases were ginned up. And what he said was -- referring to L.M., E.W. and Jane Doe -- what he said was, Well, when I said ginned up, I meant manufactured, fabricated cases. And the assertion is made that he never asserts the Fifth Amendment with regard to matters that are relevant to probable cause, as to whether he had a legitimate basis to claim that Bradley Edwards fabricated these cases. Page 34, the deposition of March 17, 2010 at line 23, quote, Specifically, what DRAFT ONLY !!!! NOT PROOFREAD EFTA00792878

69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 are the allegations against you which you contend Mr. Edwards ginned up? Answer: "I would like to answer that question. A, many of the files and documents that we've requested from Mr. Edwards and the Rothstein firm are still unavailable. "With respect to anything that I can point to today, I'm, unfortunately, going to have to take the Fifth Amendment on that, the Sixth and Fourteenth." Now, that's just one very obvious example where he's asked directly, what are the allegations that you claim in your complaint are ginned up, and he refuses to answer the question on basis of the Fifth Amendment privilege. There are many others. And the question is posed, which questions do I want to place before the jury as to which Mr. Edwards -- excuse me, I did it -- to which Mr. Epstein has asserted the Fifth Amendment, and the answer is every single one of them. THE COURT: And that's where we're going to have difficulty. As far as the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792879

70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Court is concerned the case that -- strike that. The question and answer that was just provided would be admissible. What we're talking about, Mr. Scarola, are questions that were cited in the motion and that the court has chosen not to read, that are of a graphic, sexual nature, and have, to my recollection, a general form of question, as opposed to specifics: Have you ever done certain things to minors? Have you ever been with prostitutes? Have you ever -- things of that nature. MR. SCAROLA: I don't recall that last question, but I understand the Court's -- I understand the Court's concern. THE COURT: Ms. Rockenbach's question. Again, I know you understand it, but I want to make sure that the record is clear, and that's this. I have an obligation, as both sides are well aware, to ensure that we are working on a level playing field to the extent that it is possible. I have the obligation, as Ms. Rockenbach points out, to be the DRAFT ONLY !!!! NOT PROOFREAD EFTA00792880

71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gatekeeper of evidence and to ensure to the best of my ability that we are not going to be engaging in pejorative name-calling types of questioning, nor are we going to get into inflammatory types of questioning just for the sole purpose of information. Now, I know you wouldn't do that. But at the same time, as advocates, your respective positions have to be clear-cut in favor of your respective clients. However, as I said earlier, it really becomes an issue of drilling down into the specifics before I can make rulings on the actual questions that are being sought to be introduced. So the global aspect of the Court's decision at this time, until I look at the actual questions, is essentially this. And, that is, that I'm going to permit -- and we've already gotten a stipulation on the record by Mr. Epstein's counsel, which I appreciate -- that is, he's not going to be receding from his Fifth Amendment invocations. He's not going to be changing his testimony, so as to necessitate further DRAFT ONLY !!!! NOT PROOFREAD EFTA00792881

72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 discovery as it relates to his testimonial evidence that has already been presented. Therefore, those questions that deal with, for example, the question that you asked and answered, would be admissible. Those, because of the reasons that I stated earlier, would seem to make common sense to me and seems to be the thrust of the decisions of the court's, whether in Florida or outside of Florida -- the vast majority being outside of the state and some from the federal courts -- and, that is, that the Fifth Amendment cannot be used to take away Mr. Edwards' ability to prove his case or prove the probable cause element. So to the extent that it would be needed to go in front of the jury, any questions that deal with the issue of Mr. Epstein's lawsuits brought by Mr. Edwards on behalf of the respective clients, would be germane. And any invocation, such as what was illustrated here, would be germane and relevant and found to be admissible. That's the core ruling of the Court. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792882

73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, when it comes to issues of general graphic questioning, such as what has been exemplified by way of the counter-defendant's motion, those will not be permitted. The closer question, and the one that I need to drill down further, is one of -- because the complaint -- and I appreciate the fact that you brought this with you today and provided it to me -- because the complaint delineates the nature of the allegations -- at least from a summary perspective of the three claims -- how much are we going to be able to introduce, if those questions were asked? I haven't memorized the deposition testimony. There were at least two depositions, if I'm not mistaken. MS. ROCKENBACH: Yes, Your Honor. THE COURT: Two depositions. I haven't memorized that testimony. But since the complaint -- let me cite to you exactly where we are -- where I am alluding to here. Page 18 and it states, "Rothstein and the litigation team knew or DRAFT ONLY !!!! NOT PROOFREAD EFTA00792883

74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 should have known that their three filed cases were weak and had minimal value for the following reasons." Then it goes through "L.M. testified she had never had any type of sex with Epstein; worked at numerous clubs; is an admitted prostitute and call girl; has a history of illegal drug use" (pot, painkillers Xanax, Ecstasy); and continually asserted the Fifth Amendment during her depositions in order to avoid answering relevant but problem questions for her. "E.W. testified she worked 11 separate strip clubs, including Cheetah, which RRA represented and in which Rothstein may have owned an interest. And E.W. also worked at Platinum Showgirls in Boynton Beach, which, as the subject of a recent police raid, where dancers were allegedly selling prescription painkillers and drugs to customers and prostituting themselves. "Jane Doe (federal case) seeks $50 million from Epstein. She and her attorneys claim severe emotional distress as a result of her having voluntarily gone to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792884

75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Epstein's home. She testified that there was never oral, and/or sexual intercourse; nor did she ever touch his genitalia. Yet, Jane Doe suffered extreme emotional distress well prior to meeting Epstein as a result of having witnessed her father murder his girlfriend's son. She was required to give sworn testimony in that matter and has admitted that she lied in sworn testimony. Jane Doe worked at two different strip clubs, including Platinum Showgirls in Boynton Beach." End quote. That's going to be a matter for further discussion, as far as what, if any, questions were related to those three individuals, and whether Mr. Epstein refused to answer those questions. Because if he did refuse to answer those questions specific to those three individuals, then the likelihood is -- again without prejudging -- I haven't looked at those questions -- that I will admit those into evidence, because they relate directly to Mr. Epstein's claim in his deposition and his repeated claim that these cases were, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792885

76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 quote, ginned up, end quote, and had no merit until rather recently. MR. SCAROLA: And in that regard, Your Honor, obviously, if the defense is going to take the position, as they have stated on the record now, that these were all legitimate claims, the extent to which we need to get into details with regard to what happened between Jeffrey Epstein and each of the three claimants against him is going to be very different than if they persist in challenging the legitimacy of the claims. Now, if they do that, if they are continuing to challenge the legitimacy of the claims, despite the on-the-record announcement that's just been made, this is going to be a very different trial than if they come in and say, In spite of the fact that Jeffrey Epstein alleged that Bradley Edwards fabricated these claims, we no longer take that position. We recognize the fact that these were, indeed, legitimate claims, very valuable legitimate claims. So valuable that we settled them for $5.5 million in combination. And extremely DRAFT ONLY !!!! NOT PROOFREAD EFTA00792886

77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 valuable claims because of the punitive damage exposure that Mr. Epstein confronted. How much we need to prove is dependent upon how much is contested. I doubt that they are going to concede punitive damage liability. THE COURT: Where are we on that? Has there been a ruling on the punitive damage claim? MR. SCAROLA: We have an amended permitted by the Court. There is a punitive damage claim pending against Mr. Epstein. There are pending issues with regard to the implications of Fifth Amendment assertions with regard to issues concerning net worth, because among the questions he's refused to answer are any questions relating to his net worth. THE COURT: Okay. But there is a current punitive damage claim? MR. SCAROLA: Absolutely. Yes, sir. THE COURT: I just want to make sure. The way it was written, it was a little bit cryptic in terms of pending. I didn't know if it was still a motion that needed to be DRAFT ONLY !!!! NOT PROOFREAD EFTA00792887

78 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 heard in that regard. That's all been taken care of. MR. LINK: I think Judge Crow entered that order, Your Honor. MR. SCAROLA: All over but the jury verdict. Your Honor, in the 10 minutes or nine minutes now that I have left before lunch, I want to go through something that I think will be helpful to the Court. In resolving some of the issues that Your Honor has focused on, which clearly are issues of concern with regard to how probable cause is proven in the context of a Fifth Amendment assertions on the part of the defendant who won't talk about some elements -- MR. LINK: Mr. Scarola, may I interrupt for one second? Do you mind? MR. SCAROLA: Yes, sir. MR. LINK: Judge, I want to make sure this is clear, because I thought I stated this very clearly, but sometimes what comes our of my mouth isn't what's in my head. THE COURT: It's okay. Go ahead. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792888

79 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LINK: Which is, I believe I very clearly said that we have never taken the position that during the time that Mr. Edwards was a sole practitioner, when these cases were filed up to the point that he joined Mr. Rothstein's firm, did we contend that he was doing anything that was inappropriate. THE COURT: Okay. MR. LINK: During the time that he was at the Rothstein firm -- if you will read the complaint -- everything that Mr. Scarola just read to you was all during the time he was employed at Mr. Rothstein's firm. There is not an allegation in this complaint that relates to the time period from when they were filed until he joined Mr. Rothstein's firm. That's a very significant distinction, because we are absolutely going to say that Mr. Rothstein himself was using -- MR. SCAROLA: I'm sorry. Could I finish my argument in the few minutes that are left before we hear rebuttal? THE COURT: But it may be helpful to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792889

80 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hear what Mr. Link is trying to suggest so that you can formulate your argument. MR. SCAROLA: I know exactly -- THE COURT: I will give him a minute. MR. LINK: I don't want to take long. I just want to clarify, because Mr. Scarola said that we have conceded that nothing was fabricated. What was fabricated was not the filing of the three lawsuits in 2008. It was that there were other claims in addition to those three, and that one of these three settled for 30 million, and that Mr. Epstein had offered $200 million. Those are the things that we were talking about during that time period. THE COURT: Well, the allegation, though, in subparagraph H, which was already read into the record -- I will read it again, quote, Rothstein and the litigation team -- parenthetically Mr. Scarola has suggested that the litigation team is defined as Mr. Edwards -- returning to the quoted provisions -- knew or should have known that their three filed cases were weak DRAFT ONLY !!!! NOT PROOFREAD EFTA00792890

81 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and had minimal value -- and for the reasons I have already gone through in addressing what I think is going to be relevant as to those three individuals if the contention is still that these claims were not legitimate during the period of time that Mr. Rothstein ad Mr. Edwards worked together. MR. LINK: I just want to make this distinction. I don't want to beat this horse too much. If you look at the paragraph before that paragraph, it talks about the $500 million settlement. THE COURT: I will take that in consideration. MR. LINK: So it's relative to that. Second, Your Honor -- MR. SCAROLA: I'm sorry. I would like, in the few minutes remaining, to be able to make some points before -- THE COURT: Mr. Link, I am going to ask you, then, to save your commentary for rebuttal. MR. LINK: I just was trying to answer your questions. THE COURT: I didn't know I had a DRAFT ONLY !!!! NOT PROOFREAD EFTA00792891

82 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 question pending, but I appreciate it. MR. LINK: My pleasure. MR. SCAROLA: Your Honor, I have prepared an outline, which I hope is of some help to the Court in placing these issues in context. The first thing that Your Honor needs to determine is the issue that we have been focusing on. What are the factual allegations that we claim were maliciously prosecuted against Bradley Edwards? Now, what we have just heard is an effort to draw a distinction that is not drawn in the complaint. What we heard is we claim that the legitimate cases that were filed by Bradley Edwards while he was the sole practitioner somehow became illegitimate the moment he walked trough the door of RRA. That's what we just heard. That just doesn't make any sense. That's not the allegation in the complaint. The allegation in the complaint -- and as testified to by Mr. Epstein repeatedly in his deposition -- the allegation in the complaint is Bradley Edwards, quote, ginned DRAFT ONLY !!!! NOT PROOFREAD EFTA00792892

83 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 up these claims and he describes that as he crafted the complaints, he fabricated the complaints. Now ginned up doesn't happen to appear in Merriam-Webster's dictionary. But there are sources that define ginned up. The Oxford Dictionary says ginned up means to generate or increase something, especially by dubious or dishonest means. The McMillan dictionary: To create, to generate, especially artificially or by dubious means. The Free Dictionary: To create or produce. So what we are alleged to have done is to have generated by dubious and dishonest means, claims on behalf of three individuals who really weren't victims for the sole purpose -- as Mr. Epstein repeatedly alleges -- for the sole purpose of supporting a massive Ponzi scheme, in which, as Your Honor as observed repeatedly -- and I will get to this in just a moment -- Jeffrey Epstein could not possibly have been a victim. Didn't know about it. Didn't DRAFT ONLY !!!! NOT PROOFREAD EFTA00792893

84 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 know anybody involved in it. Didn't know it was going on until after it was over. Didn't spend a single penny investing in his own fabricated settlements. And to the extent that he claims his damages are attorney's fees for what was going on while these cases were being prosecuted, Your Honor is very, very familiar with the litigation privilege, and knows that nothing that went on in the course of the prosecution of those cases, whether it was legitimate or illegitimate, can form the basis of a separate civil lawsuit. Motion for contempt, motion to impose sanctions, 57.105 motion, bar complaint -- a lot of other remedies are available, but not a separate civil action, because he had to spend attorney's fees on what he claims were illegitimate discovery pursuits, which the evidence will show were totally and completely justified, and in many cases initiated long before Bradley Edwards ever became a member of RRA. So, even if it were not already clear DRAFT ONLY !!!! NOT PROOFREAD EFTA00792894

85 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that -- THE COURT: You are talking about the expenditure of attorney's fees? MR. SCAROLA: Yes. That's correct. Could not be damages. Just can't be as a matter of law. Even if it were not already clear that Epstein alleged Brad fabricated the three cases he was prosecuting against Epstein, that's the only allegation that could possibly support a claim against Brad -- because as I mentioned -- because of the litigation privilege. But in addition to that, he suffered no damage from the Ponzi scheme. He didn't even know about it. Any action Brad took in the course of prosecuting those three cases, absolutely privileged. And as a matter of law, it has been established in this case that there was no evidence to support those claims, because we filed a motion for summary judgment. On the eve of the motion for summary judgment, without ever having filed any opposition whatsoever, he voluntarily dismissed those DRAFT ONLY !!!! NOT PROOFREAD EFTA00792895

86 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 claims. That issue has been resolved. So we must prove lack of probable cause as to either/or both of the two false claims. We have to prove Epstein did not have a reasonable basis to believe that Brad fabricated the three claims, and he didn't have reasonable basis to allege that Brad was a knowing participant in the Ponzi scheme. How do we do that when there is a Fifth Amendment assertion? How do we prove what Epstein reasonably believed when he blocks relevant discovery with the assertion, not only of a Fifth Amendment privilege, but of a clearly legitimate attorney-client privilege as well? And Your Honor has read the depositions. You know all of the relevant questions that were not answered with regard to attorney-client privilege are matched by the number of relevant questions to which he asserts attorney-client privilege as well. So where do we go from there? And the answer -- THE COURT: Take about two minutes to DRAFT ONLY !!!! NOT PROOFREAD EFTA00792896

87 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wrap up. I want to respect the fact that I have already allowed Ms. Rockenbach to leave at 11:45. MR. SCAROLA: Yes. Thank you. I will, Your Honor. The answer lies in a very fundamental presumption. And that fundamental presumption is every person is presumed to have intended the natural and probable consequences of his act. Very basic principle of law. It is cited specifically in the case that I have on this page. But it is a universal principal of law recognized in all American jurisdictions. So, proof that Epstein filed a false claim against Bradley Edwards gives rise to the presumption that he intended to file a false claim against Bradley Edwards. Florida statute 90.301 through 304 -- those are three provisions of the evidence code -- talk about the effect of that presumption -- and I won't go into that now. I will wait until after lunch -- but, basically, this lays out the way this case is proved. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792897

88 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If we prove that these were not false claims, if we prove that Jeffrey Epstein knew they weren't false claims, because he was the one who physically participated in doing what he is alleged to have done, so he had to have known what he did -- once we've proven that, the presumption arises he intended to file knowingly false claims against Bradley Edwards and we have shifted the burden of proof to him to prove one of two things: the claims were true. That's a defense. The other defense is, Well, we know the claims were not true, but I reasonably believed them to be true at the time. Thank you, sir. I will leave it right there. THE COURT: Thank you, again, both sides for your excellent presentations. Thank you to our courtroom personnel as well. What we are going to do is return at about 1:40. I have something that I need to do between the lunch, which I'm going to leave a little early and an errand I need DRAFT ONLY !!!! NOT PROOFREAD EFTA00792898

89 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 do. So come back at 1:40. What I propose we will do is I will give you two hours this afternoon. We will go to about 3:40, and then proceed back with the remaining issues on the days that we have already set aside. Again, thank you all very much for your courtesies. Have a pleasant lunch. We will reconvene at 1:40. We will be in recess. Thank you. (A recess was had 11:48 a.m. - 1:44 p.m.) THE COURT: Good afternoon, everybody. Welcome back. Okay let's go ahead and proceed then. Mr. Scarola, you were in the midst of your PowerPoint. MR. SCAROLA: Thank you, sir. Yes. Your Honor, just to recap the point at which we broke off, the defense has taken the position that the Baxter and Frazier cases stand for the proposition that the Fifth Amendment may not be the sole basis upon which a plaintiff rests its case to satisfy the burden of proof with regard to any element of the plaintiff's claim. We DRAFT ONLY !!!! NOT PROOFREAD EFTA00792899

90 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't take issue with that. That's good law. You cannot determine from a Fifth Amendment adverse inference alone whether probable cause did or did not exist. And that's why I have reviewed with Your Honor what the other evidence is that both directly and circumstantially establishes that there was an absence of probable cause. We begin with a point that one is presumed to have intended that which one did. And Jeffrey Epstein when he filed claims, demonstrated to be false, is presumed to have intended to file claims that were false. We are not taking about malice yet. Independent of any evidence that relates to malice, we get to prove the truth of Brad Edwards' underlying claims on behalf of L.M., E.W. and Jane Doe. So that then brings us -- THE COURT: I think I have already essentially ruled on that from a global standpoint. I am in agreement with you that any Fifth Amendment invocations as it DRAFT ONLY !!!! NOT PROOFREAD EFTA00792900

91 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 pertains to L.M., E.W. and Jane Doe -- again, globally and without getting into graphic -- I intend to admit as being relevant. You can proceed. MR. SCAROLA: Thank you very much, Your Honor. So we had broken off at this point where I began to talk about Florida Evidence Code sections 90.301 through 304. And I have a copy of those evidence code provisions that I will provide to the Court. I have provided them to opposing counsel as well. THE COURT: Thank you. MR. SCAROLA: These provisions focus on the shifting burden of proof, what a presumption does and what a presumption does not do. And I have underlined some sections here for Your Honor that I think are of particular significance in those three evidence code provisions. And basically the gist of these evidence code provisions is that once we have proven that these were false claims, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792901

92 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 once we have adduce proof that these were false claims, and take advantage of the presumption that the filing of knowingly false claims gives rise to one is presumed to have intended to do that, which one did, and presumed to have intended the natural and probably consequences of filing false claims, then the burden shifts. And that's the point at which we broke for lunch, where I pointed out that at that point Mr. Epstein has every right to come in and say, now, Wait a second. You have put on evidence that these were false claims -- I mean, that these were valid claims, but I have the right to come in put on evidence that they were not valid claims. And he absolutely does. THE COURT: I think that was the gist of my point I made earlier regarding the fact that we can't take it from one side only. And that if the proof is essentially within the invocation of the Fifth Amendment, i.e., the questions that were asked that would be pertinent to the issues of probable cause but refuse to be answered, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792902

93 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then Edwards should not be penalized because of that. MR. SCAROLA: Yes, sir. And I certainly agree with it. And that's why I made the comment that it becomes significant when the defense stands up during the course of this argument and says we are not claiming that these were fabricated claims at the point in time at which Brad Edwards is a sole practitioner. We're claiming they became fabricated claims after he joined RRA. And then I guess what they're saying is they're unfabricated when he settled them for $5.5 million. If he wants to try to make that argument to the jury, that's fine. He can try to make that argument to the jury. I don't think it's going to go anywhere as a matter of fact, nor do I think it's going to go anywhere as a matter of law. But he can try it. He can try to say the valid claims got unvalidated and then got validated again, and I settled them for $5.5 million. At any rate, the burden does shift to him. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792903

94 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, he can also say that these were valid claims, but I reasonably believe them, mistakenly, but reasonably believed them to be invalid claims. I had probable cause to support my malicious prosecution claim, because I thought, mistakenly, but reasonably, that they were invalid claims. Then we get to the fact that Epstein cannot reasonably believe what Jeffrey Epstein knows to be false. And Jeffrey Epstein knows whether he molested these children or he didn't molest these children. So if we prove that he molested them, he cannot contend he reasonably believed that he didn't molest them. We proved he knew the cases were fabricated with proof that he actually molested L.M, E.W. and Jane Doe. We proved that these were not ginned up cases. These were not fabricated or created, not ginned up by proving that he settled them for $5.5 million, not while he was under some misapprehension about what these cases were all about, but after the Ponzi scheme was DRAFT ONLY !!!! NOT PROOFREAD EFTA00792904

95 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 fully and completely disclosed. After he read all of these news articles that he claims that he relied on -- or that his lawyers claimed he relied on, because he hasn't made those claims, but his lawyers have made those claims -- and we proved the cases weren't fabricated, with proof of his guilty plea to the molestation of children with his Fifth Amendment assertion. Because his Fifth Amendment assertion at that point clearly is relevant and material, and an adverse inference can be drawn from that. We proved that he did not have a basis to file these claims, because he fails to defend against the summary judgment, voluntarily dismisses the cases, and never refiles them. No question about the fact that at this important in time there has been a bona fide resolution of his claims in favor of Bradley Edwards. And we proved the cases were not ginned up by proving similar fact evidence. And Your Honor made some reference to this, but I want to be sure that we focus specifically on this aspect of the case, DRAFT ONLY !!!! NOT PROOFREAD EFTA00792905

96 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 because one of the things that the defense is attempting to exclude is any reference to anything other than L.M., E.W. and Jane Doe cases. Your Honor suggested -- and I thought that I heard you correctly -- that evidence with regard to other claims actually filed against Epstein would be relevant and material. And clearly it is. THE COURT: I believe what I said was those cases filed by Mr. Edwards were any claims that were made against Epstein by a client represented by Mr. Edwards. Tell me why you think that the aggregate cases not having anything to do with Mr. Edwards' representation or Rothstein firm's representation -- because Mr. Berger, I think, was involved in some respects as well. MR. SCAROLA: Co-counsel. THE COURT: Solely as co-counsel -- I believe that to be the case -- are you suggesting that the aggregate cases would be relevant? MR. SCAROLA: Yes, sir. And they are DRAFT ONLY !!!! NOT PROOFREAD EFTA00792906

97 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 relevant for multiple reasons. Your Honor will recall the chart that was put up by opposing counsel that attempted to summarize all of those things that Jeffrey Epstein could have reasonably relied upon to -- I guess what they're saying now is mistakenly conclude that Brad Edwards was part of this Ponzi scheme. And among those things that are referenced in that chart were Brad Edwards' efforts to -- for example -- and this is only one example -- to take discovery from pilots about what was going on on Jeffrey Epstein's private planes when all of Brad Edwards' three clients acknowledged that they were not passengers on the planes. And that is true. It is true that all of Brad Edwards' clients acknowledged that they were not passengers on Jeffrey Epstein's private jets. But both the Florida Evidence Code and federal rules of evidence expressly permit the federal rules are very explicit about this: Expressly admit the introduction of evidence with regard to other child molestations in any DRAFT ONLY !!!! NOT PROOFREAD EFTA00792907

98 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 child molestation claim. THE COURT: So let's talk about that for a minute. Because again, what I don't want this to turn into is a case testing whether or not Epstein was an alleged serial child molester. It would not, in my view, pass muster legally, and I don't want to try this case twice. I think that we should be extremely circumspect when it deals -- when we are dealing with global issues of molestation of graphic descriptions of any types of alleged molestation, except where we are dealing with claims that have been brought on behalf of those represented by Mr. Edwards. The risk of error, if we go beyond that intended limitation, is significant. And I want to make sure that we, again, are focused on the elements of the claim. And whether it be for compensatory damages associated with Mr. Edwards' claim or punitive damages associated with Mr. Edwards' claim, we are still dealing with a malicious prosecution claim, solely a malicious prosecution claim. DRAFT ONLY !!!! NOT PROOFREAD EFTA00792908

99 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And so to deviate from that direction would be precarious and concerning to the Court, in particular, because when we're dealing with issue of probable cause, we're focusing on -- as I've made clear -- not only Mr. Epstein's stated intent, but I fully intend to allow circumstantial evidence, inclusive of the invocation of the Fifth Amendment relevant questions pertaining to the plaintiff's -- the counter-plaintiff's, more precisely -- Mr. Edwards' position to explain to the jury why -- or to the Court -- why Mr. Epstein brought this claim. What were the true motivating factors concerning same. To allow this to intrude into allegations of serial molestation is dangerous and is concerning. You may proceed. MR. SCAROLA: Thank you, Your Honor. I acknowledge the legitimacy of the Court's concern. And I recognize the fact that the Court, appropriately, under Rule 403 must balance probative value against prejudice. However, as soon as Mr. Epstein takes DRAFT ONLY !!!! NOT PROOFREAD EFTA00792909

100 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the position, as he has in this demonstrative exhibit that -- THE COURT: Show me where, please. MR. SCAROLA: Let's go through these and -- let me zoom in. On this top line are all of those circumstances subsequent to 4/9/09 when Bradley Edwards became a member of Rothstein, Rosenfeldt & Adler, which counsel says gave raise to a reasonable suspicion that Bradley Edwards was a knowing participant in the Ponzi scheme and was using fabricated claims to support that Ponzi scheme. Let's take them one at a time. Jane Doe move to unseal the non-prosecution agreement. Now, the non-prosecution agreement is expressly referenced in the complaint, as is the Crime Victims' Rights Act case. So if Jeffrey Epstein is going to say efforts to unseal the non-prosecution agreement contributed to his reasonable belief that Bradley Edwards was a knowing participant in the Ponzi scheme, we need explain what the non-prosecution agreement DRAFT ONLY !!!! NOT PROOFREAD EFTA00792910