208 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 cannot possibly form the basis of a tort claim because it is protected by absolute immunity? THE COURT: Only to the extent that Epstein would have the ability to defend himself as it relates to the elements of malice or probable cause. MR. SCAROLA: Yes, sir. THE COURT: And that's where I am finding a conundrum, and you articulated it much better than I can. And the sword versus shield doctrine is a tough one here, because while I respect an attorney's ability to protect his or her mental impressions, strategies in ways of going about a case, we have to really drill down to what purpose does that privilege serve. We are not dealing with the direct, normal everyday scenario that we see plaintiff versus defendant and plaintiff takes photographs of a given site that would not be otherwise available to the defendant except through some type of hardship. We are not dealing with a one-on-one situation. Palm Beach Reporting Service, Inc. EFTA00788319

209 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We are dealing with a one-off, so to speak, and that is, the litigation itself has a purpose. The mental impressions of an attorney in the prosecution of that underlying claim certainly must be protected. And I'm not by any way, shape or form suggesting it shouldn't be. However, the area of inquiry that is triggered is not so much in that case -- really has nothing to do with this anymore. What it has to do with is whether or not that was part of a defense that is asserted by Epstein as it relates to his allege malice, expressed or implied, and whether or not it addresses the element of probable cause and his defense to that element. MR. SCAROLA: May I, at the risk of arguing against myself, articulate what I think the Court is saying, because I think I agree with that decision? While improper litigation tactics are absolutely privileged and cannot form the basis of an independent tort claim, engaging in improper litigation tactics may be circumstantial evidence that support Palm Beach Reporting Service, Inc. EFTA00788320

210 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Epstein's assertion that Brad Edwards knew that he was aiding in the Ponzi scheme. THE COURT: I don't even think it has to go that far. MR. SCAROLA: Then I withdraw my comment. THE COURT: We are saying this with a smile on our faces. I appreciate the bit of levity. More so what I'm saying is we don't even have to get that far. It really just goes to whether or not it is evidence. Does it tend to prove or disprove a material fact, therefore giving it relevancy to the area of inquiry of the elements of a malicious prosecution claim that must be proven by Mr. Edwards that is equally defensible by Mr. Epstein, and is equally defensible in the eyes of the law? I don't know what the facts are, but the eyes of the law say he's entitle to his defense. And this area of inquiry as it relates to this federal litigation the $14 million bond, the limited information that he may or may not have had regarding the whereabouts Palm Beach Reporting Service, Inc. EFTA00788321

211 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the files during the operative period of Adler's and Rothstein's dealings, allegedly, as it relates to Adler, clearly as it relates to Rothstein by his own testimony as to appease these investors and to further his own Ponzi scheme. Again, this is by no means suggesting that Mr. Edwards had anything to do with this. And believe me, I am not sitting here -- because I don't know anything about the investigation, other than what I've read in the newspapers. And I try to stay away from them as much as I could, particularly when I remember still to this day -- and I will share this everyone because I think you should know. I remember Mr. Edwards coming in after this thing completely fell apart -- I knew nothing about -- this is the Ponzi situation with Rothstein when they raided offices he and William Berger came in and explained this to me -- when I was handling those other cases -- and that they would have to switch and go to another firm, whatever the case may be. So I remember that. Palm Beach Reporting Service, Inc. EFTA00788322

212 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And again, not that it has anything to do with the issue. I just thought about it now, that they came in that day. But the bottom line is it really comes down to allowing Epstein to be able to defend himself and defend the allegations, even though there was a summary judgment on the part of -- sorry. There was voluntary dismissal on the eve of the summary judgment. He has the ability, in my view, to be able to defend himself on the elements of malice and proximate cause. So those are the reasons why I'm allowing that testimony to be had, subject to objection. I understand and I am willing to accept that. Now, on the issue of damages, I would like to get into that briefly, if we could, and find out whether or not we can get to some common ground. You said that there was one that was answered? MR. SCAROLA: I can tell Your Honor that -- first of all, let me describe the nature of the economic damage claim. Palm Beach Reporting Service, Inc. EFTA00788323

213 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: Sure. MR. SCAROLA: We are not claiming lost wages or lost earnings. What we are claiming is the lost value of the time that Mr. Edwards was obliged to devote to the defense of the maliciously brought claims. In that regard, we have provided to the defense contemporaneous time records reflecting the amount of time that Mr. Edwards was obliged to devote to the defense of those alleged-to-be-maliciously- brought claims against him. That is the extent of the economic damage claim. We believe that we have fulfilled any obligation that we have to provide discovery with regard to that portion of the economic aspect of the case by providing those contemporaneous time records. THE COURT: Hold on for just a minute. Let's take them one step at a time. Were you aware until today that Mr. Edwards was not making a claim for loss of earnings or loss of the capacity to earn? MR. BREWER: No. No, because we talked about injury. They are claiming injury to Palm Beach Reporting Service, Inc. EFTA00788324

214 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 his reputation. THE COURT: Monetary damage. That wasn't my question. Hold on. Take it one step at a time. So we have gotten somewhere. Now we know there's not, for the record, a claim for lost earnings or loss of earning capacity. All right, so let's start there. MR. SCAROLA: Could I just qualify that in one respect, Your Honor? If we're talking about the loss of the value of Mr. Epstein's time -- excuse me Mr. Edwards' time, that could be characterized as a loss of earning capacity, because if he's devoting time to the defense of this case, he could not be devoting it to some other legal pursuit. However, that time could have been taken away from this family. It could have been taken away from vacation. It could have been taken away from a lot of things. We are not alleging that he lost business or business opportunity, but he did lose the value of the time that he was obliged to Palm Beach Reporting Service, Inc. EFTA00788325

215 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 devote to the defense of this case based upon contemporaneous business records. THE COURT: Okay, so while there's not a formal claim for lost wages or loss of earning capacity, there's a claim for the lost value of time that Mr. Edwards had to spend on the defense of this case? MR. BREWER: I'm sorry. Is that the only financial or economic damage claim? THE COURT: We will go back to Mr. Scarola. MR. SCAROLA: Yes. THE COURT: Okay. So there's no medical issues, no psychiatric bills or testimony that's expected, no psychological, except for what I presume to be some type of mental anguish claim he would have. MR. SCAROLA: He will talk about mental and emotional injury, distress, fear of retribution. And those things are -- those things are special damages that were laid out in the complaint. THE COURT: All right. So there are no other economic damages that I am aware of as related -- Palm Beach Reporting Service, Inc. EFTA00788326

216 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BREWER: He's claiming injury to his reputation as an economic damage. THE COURT: Well, I'm not certain it is. MR. BREWER: I think it is, Your Honor. How is it going to be expressed? THE COURT: That's a good question. MR. BREWER: It's going to be expressed in dollars. THE COURT: I understand that. So is a recommended amount for pain and suffering in a generic BI claim. But, again, we have to look at this from the standpoint of lost -- you said lost -- MR. SCAROLA: Injury to reputation. THE COURT: Loss of injury to his reputation. MR. SCAROLA: Yes, sir. Quite frankly, this is analogous to a defamation per se claim. That is, if someone is attacked with regard to the performance of their professional responsibilities, of their capacity to perform in an ethical and honest manner, Palm Beach Reporting Service, Inc. EFTA00788327

217 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then damages are presumed, without the necessity for the specific loss. THE COURT: I am not going to get in Mr. Scarola's thought process, which is a precise example of what I was trying to delineate earlier -- MR. SCAROLA: And clearly I am harassed. THE COURT: -- between the direct claim and now what I call the one-off claim, without meaning any disrespect to anyone here. But it was just a way of trying to describe the difference. Now, again, I'm not telling you what you can ask specifically. But I'm saying now that there is an area of inquiry that's opened up here with regard to both his claim of loss of value of time and the issue of loss of reputation -- or the tarnishing of his reputation. Those are questions that can be gotten into with Mr. Edwards. MR. SCAROLA: And have. We understand that that's an appropriate area of inquiry to the extent that it has not already been the subject of inquiry. Palm Beach Reporting Service, Inc. EFTA00788328

218 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE WITNESS: Again, let the record be clear. I am exercising my discretion, which I understand to be relatively broad, certainly not without at least some harnessing, but certainly to the extent that I'm exercising what I perceive to be under the case law a broad discretion in the area of discovery. The exercise of this discretion is consistent with the fact that the cases have been filed in 2009. We are now in 2017. There was a lengthy appellate process that transpired. The case went all the way up to the supreme court on the very issue that is going to be tried. And counsel for both sides have worked very hard in preparing the motions that would be heard today and that still need -- some still need to be heard. I look forward to sufficient time in order to that. But the reason for the allowance of Mr. Edwards to be redeposed and essentially to start again is because my review of the deposition excerpts are such that a cogent deposition was not taken. I'm not blaming Palm Beach Reporting Service, Inc. EFTA00788329

219 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 anyone for that. But certainly even just the passage of time in doing this, again, for as long as I have is significant from the standpoint of what is relevant today versus what may have been relevant in 2010-2013, respectfully. And the exercise of that discretion is to assure ourselves that only that area of inquiry that is relevant today, now that the Epstein claim has been voluntarily dismissed, there really are no other pending live claims, except for Mr. Edwards' malicious prosecution claim against Epstein is a significant reason for my allowance of this deposition to go forward. So anything else on damages that are going to be needed to be looked into? MS. HADDAD COLEMAN: Yes, Judge. I would like to speak to the two areas about which Mr. Scarola just stated were the damages being claimed by Mr. Edwards. It is of great concern that he's seeking punitive damages in this case. Clearly, my client has the right to explore what the monetary damages suffered as Palm Beach Reporting Service, Inc. EFTA00788330

220 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 alleged by Mr. Edwards are, as well as his potential exposure. That's the best way to evaluate a case, and is something to which I speak about with my client. However, with respect to the first instance of damages that Mr. Scarola mentioned -- the cost to defending against Epstein's case, the time away from his practice or his family or whomever should be answered in these allegations -- he has hired Mr. Scarola from the outset. What I'm saying is, when we ask questions about his time records or his work on cases or his legal practice or his vacations during the relevant time period and we get an objection, I want to know what that means. What are we allowed to ask him about that? And, Judge, with respect to the injury to his reputation -- Mr. Scarola just said his defamation, per se -- well, that's part of the litigation privilege. You don't get damages for defamation, per se. It all occurs during the course of litigation. So what does injury to his reputation mean? How do we quantify that? By his Palm Beach Reporting Service, Inc. EFTA00788331

221 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 work? THE COURT: These sound like motions, potentially, for partial summary judgment. All I'm trying to do here today is trying to reach at least some reasonable confines of a deposition that probably needs to be taken in the next 30 days. I am going to authorize it be taken within the next 30 days. And I'm giving you a broad scope of where I believe the testimony should be focused. I am not trying to give anybody hints. I'm not trying to give anybody help. I'm not trying to direct anything other than to exercise the discretion that I've already indicated on the record to ensure that we are going to least have what I hope to be a deposition that is going to focus on the areas that need to be focused on based upon what is currently before the court, and that is, the singular count of malicious prosecution by Edwards against Epstein, and the general areas that I have seen by way of the significant amount of materials that I have read and the arguments that you have Palm Beach Reporting Service, Inc. EFTA00788332

222 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been kind enough to present to me on both sides that I perceive to be areas of appropriate inquiry. Whether it's met with objection or not, well, I will deal with that at another time, okay? But I can't presuppose anything that is not before me at this stage of the proceeding. And really, it's against all known rules for me to rule on something that is not before the Court. Again, part of the process of being the trial judge is trying to work out at least some meaningful areas of compromise without being a mediator, but trying to at least move this case forward, as it is my obligation under the rules of judicial administration. And that's what I'm trying to accomplish today in large part. So I don't want to get into right now, well, what specifically can we ask? That may be limited, that may be not appropriate, that may not be legally an appropriate part of the damages. If it's not a legally appropriate part of the damages then you can raise it by way Palm Beach Reporting Service, Inc. EFTA00788333

223 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of a motion for partial summary judgment, motion for pleading -- judgment on a pleading, something along those lines. But I am not here to make those types of decisions now. So let's give it a shot. Let's see where you guys can end up. And essentially what I am doing as well, for the reasons that are stated on the record, I'm denying Epstein's motion to overrule the objections and compel Mr. Edwards to answer questions, except for those that I have specifically stated today on the record. The vast majority of these questions that have been brought to my attention -- again, I recognize that I may be taking some out of context -- but what I would respectfully suggest are complete and entirely irrelevant from a discovery perspective. And I have today on several occasions differentiated between reasonable bounds of discovery recognizing the broad nature of discovery versus admissibility for finding, nevertheless, that these matters touch on Palm Beach Reporting Service, Inc. EFTA00788334

224 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 areas that are of no relevance to what we are dealing with in this singular claim. MR. SCAROLA: Your Honor, with a view towards anticipating procedural issues and going back to my concern about wanting to complete Mr. Epstein's deposition or discovery before we are providing him additional information, there are three things that I want to mention. Mr. Epstein has listed two of his prior attorneys on his witness list. And I have been attempting now for many days through many email communications to find out whether it is Mr. Epstein's intension to waive attorney-client privilege in an attempt to rely upon some kind of advice of counsel defense. THE COURT: Would you tell me who those attorneys are, please? MR. SCAROLA: Mr. Roy Black is one, and I think Mr. Goldberger was another. MR. GOLDBERGER: Yes, Mr. Goldberger is one of them. Mr. Critton is one and Mr. Akerman. MR. SCAROLA: Mr. Critton and Palm Beach Reporting Service, Inc. EFTA00788335

225 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Akerman. I'm sorry. There's a bunch of them. THE COURT: Who are the ones that are actually listed? MS. HADDAD COLEMAN: On the witness list, Judge, are Mr. Critton, Mr. Black -- and the reason -- because you made us answer why we were listing people in the summary of the testimony -- says that they will be called in rebuttal, if necessary, to testify as to the facts known to Mr. Epstein at time he filed suit, because Mr. Critton filed the suit. MR. SCAROLA: And that listing of witnesses and descriptions of their testimony clearly indicates an intent to waive attorney-client privilege. Obviously, neither Mr. Critton nor Mr. Black nor any other of Mr. Epstein's lawyers can testify about what Mr. Epstein knew, except based upon what Mr. Epstein told them. And an advice of counsel defense fails as a matter of law unless a full and complete disclosure is made to the lawyers. Palm Beach Reporting Service, Inc. EFTA00788336

226 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And Mr. Epstein cannot selectively waive attorney-client privilege. He can't say I'm going to waive attorney-client privilege with regard to what I told Robert Critton and Roy Black, but I'm not going to let you inquire as to what I was telling all my other lawyers at the same time if the issue is what did Mr. Epstein know. So I have asked very directly in at least five email communications -- and I would be happy to provide you with copies of each of them -- please tell me whether there is an intent to waive attorney-client privilege, because if there is, I need to take all of these depositions. And if there is not, I don't need to take any of them, because they will not be able to testify, unless there's a waiver of attorney-client privilege. I filed notices to produce from non-parties for the files of all of these attorneys, to which there has been an objection. I have noticed their depositions, and I have served them with subpoenas to be deposed. Palm Beach Reporting Service, Inc. EFTA00788337

227 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 At the time that I served them with those subpoenas, I sent letters out to all of them copying opposing counsel, saying I am setting these because we are dealing with a trial that is set already on the trial calendar and I need to take this discovery. If the dates are inconvenient for you, or if there's not going to be a waiver of attorney-client privilege, please let me know. And nobody is responding to those direct inquiries. I do not know, as I stand here today, whether attorney-client privilege is going to be asserted or it's going to be waived. THE COURT: It seems to be a bit difficult to assert attorney-client privilege when two attorneys are listed as witnesses. MR. SCAROLA: That's exactly my point, Your Honor. And that's why I have asked for that clarification. I don't know how they can call these witnesses. And the only thing I have gotten from Ms. Haddad Coleman is these are listed as rebuttal witnesses. Well, I don't care whether they are Palm Beach Reporting Service, Inc. EFTA00788338

228 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 rebuttal witnesses or witnesses that you are calling for any other purpose. If you intend to rely on their testimony for purposes as described in your disclosure to the court, that cannot be done without a waiver. Is that what you are telling me you are doing? And they refuse to answer that question. So I would ask that the Court pose that question to them right now and that we get an answer on the record as to whether that is going to happen so I know whether this is discovery that I need to proceed with. THE COURT: Binger has long held, essentially, that there's really no difference from the discovery standpoint between rebuttal witnesses or rebuttal evidence and direct evidence of witnesses in chief. Mr. Brewer, your position? MR. BREWER: I have been dying to speak, Your Honor. THE COURT: Go right ahead. MR. BREWER: First of all, advice of counsel is a defense. It is an affirmative Palm Beach Reporting Service, Inc. EFTA00788339

229 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 defense. And it is an affirmative defense which has not been raised by Mr. Epstein. Period. End of story. MR. SCAROLA: Then are we removing those two witnesses from the witness list and the description that they are going to testify as to Mr. Epstein's knowledge at the time of the filing? MR. BREWER: I didn't interrupt him at any time. THE COURT: That's fair. Go ahead Mr. Brewer. MR. BREWER: With regard to the two witnesses listed, it is true that they are listed as rebuttal witnesses. They can testify about things that are not attorney-client privileged. In other words, they can testify just say Mr. Edwards decides to -- just to take some hypothetical -- in his case in chief decides to say, You know what, I wasn't involved with regard to that federal case that was filed. That had an electronic signature on it. It wasn't me. I didn't do it. Scott Rothstein did it. They would Palm Beach Reporting Service, Inc. EFTA00788340

230 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have knowledge of what transpired in the case that they could give rebuttal testimony on without waiving any kind of attorney-client privilege. Now, we get to a conundrum that, again, is being posed -- and this is going to come up before you, Your Honor, on the motion for stay -- and that conundrum is, Mr. Epstein is -- because of that Crime-Victims' Right Act is still potentially in jeopardy for prosecution, because they have purposely -- and Mr. Edwards and an attorney by the name of Cassel, I believe, have prosecuted that. It is still going on. And they control at least their side of that litigation. And it is because of that that Mr. Epstein must continually, unfortunately, plead the Fifth. And so we have got Mr. Edwards controlling both sides, essentially, that we are now looking at. And I'm bringing that up -- but it's going to be brought up in front of Your Honor because it's a conundrum. I cannot, as I sit here today -- because this issue -- while there have been Palm Beach Reporting Service, Inc. EFTA00788341

231 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 emails back and forth between counsel as to whether or not these people are going to be listed or not, I can't tell you, because I have not had an opportunity to speak with Mr. Epstein about these issues. And, in fact, these issues just came up. And there's no motion before the Court. They have not been briefed in any shape, form or fashion. And therefore, we really are not willing to respond today from the standpoint of, Yes, we are going to blanket-waive attorney-client privilege. I can't make that assertion to the Court, or that we are not going to one way or the other. MR. SCAROLA: Your Honor, respectfully, the issues were directly raised in a motion that we filed to strike Mr. Epstein's affidavit and to preclude presentation of any testimony or evidence as to which discovery was foreclosed on the assertion of the Fifth Amendment privilege and by assertion of the attorney-client privilege. So that motion was timely filed. That motion is before the Court. Although, Your Honor has decided not yet to hear it, that Palm Beach Reporting Service, Inc. EFTA00788342

232 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 motion was filed. And one of the reasons it was filed is because these two witnesses were listed and the description was provided of their testimony. And it wasn't rebuttal in case Bradley Edwards decided to disclaim knowledge of the federal case. The listing was knowledge with regard to what Mr. Epstein knew and relied upon at the time of the filing. That is an advice of counsel defense which has never been raised. It is an affirmative defense that is required to be asserted. They didn't assert it. They've listed these two witnesses and described testimony that is only relevant with regard to an advice of counsel defense. And when I tried to get an answer as to whether that's what they're trying to go do indirectly, they ignore me. They refuse to answer those questions. I don't want to depose Roy Black or any of the other five lawyers that I have set for deposition if there's going to be no waiver of attorney-client privilege, because I will waste my time. They will Palm Beach Reporting Service, Inc. EFTA00788343

233 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 appropriately assert attorney-client privilege. And I don't need to do that. We have got other productive things that we need to do. I don't need to redeposed Mr. Epstein in advance of Mr. Edwards, being if, Mr. Epstein is going to continue to assert his Fifth Amendment privilege. THE COURT: Mr. Brewer has already indicated that will be the case. MR. SCAROLA: If that's the case, that's fine. I don't need to take his deposition again. He's asserted the Fifth Amendment privilege consistently, broadly, and foreclosed discovery with regard to the matters that are the central focus of this case. And we are fine with that record as it stands. THE COURT: So what are you asking me to do today on this issue? MR. SCAROLA: I have gotten, I think, what I needed, and that was an assertion that there will be no advice of counsel defense raised and no waiver of attorney-client privilege. Palm Beach Reporting Service, Inc. EFTA00788344

234 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: At this point in time, as I understand it, Mr. Epstein continues to assert and will continue to assert his Fifth Amendment privilege based upon the Victims' Right case that's currently pending in federal court. MR. SCAROLA: And attorney-client privilege. THE COURT: If I didn't say that, I meant to. MR. SCAROLA: You didn't. And I just want to be sure that that's our mutual understanding of where we stand procedurally right now. THE COURT: I listed privileges, and whatever is associated privilege -- I didn't say attorney-client privilege. Presumably that's also going to be -- MR. BREWER: You are asking me to look into a crystal ball right there, Your Honor. I can say that -- THE COURT: Join the club. MR. BREWER: I can say that because of the incendiary case, he has to pled the Firth to certain questions which deal with Palm Beach Reporting Service, Inc. EFTA00788345

235 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 purported criminal activity. THE COURT: Well, my understanding is that anything of a substantive nature it gets into, any of the areas that have already been previously inquired into would be privileged as it relates to the Fifth Amendment and the assorted other amendments that he has stood upon will continue to asserted. And presumably the attorney-client privilege also? MR. GOLDBERGER: Subject to consultation with our client, obviously, Judge. THE COURT: be But it sounds like it will be. I am going to accept that as a yes. MR. SCAROLA: Thank you, sir. And the one last procedural matter that I want to raise is is one of the three clients that Bradley Edwards represented. One of the three cases that was settled. And -- at the request of opposing counsel, and with the agreement that Mr. Epstein would pay for her transportation -- traveled from Australia to New York in order to be available to be Palm Beach Reporting Service, Inc. EFTA00788346

236 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 deposed on Friday. She is here. She is ready to be deposed. THE WITNESS: Here in Florida or New York? MR. SCAROLA: She's in New York. The agreement was that she would be deposed in New York. That's where they wanted her to be deposed. She flew to New York, is there and ready to be deposed on Friday. We are ready to defend against that deposition on Friday. Our position will be that if they don't choose to take that deposition now in light of those circumstances, they will have foregone any opportunity to depose who has already given sworn testimony on multiple occasions. THE COURT: I don't know who is, so -- MR. SCAROLA: One of the three -- THE COURT: You said that. One of the three people Mr. Edwards represented. MS. HADDAD COLEMAN: Judge, I would like to speak to that. First of all, Mr. Edwards did not represent Palm Beach Reporting Service, Inc. EFTA00788347

237 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 at the time in any case against Mr. Epstein. That isn't true. Second point MR. SCAROLA: I apologize. That is a mistake. Yes. MS. HADDAD COLEMAN: Second, she's never given any testimony in this case, whether in Mr. Epstein's case in chief against Mr. Edwards or conversely. Number three, we were told when they listed Ms. Roberts as a witness, to coordinate with Mr. Edwards. I was then told to coordinate with an attorney in New York. Basically the long and short of it is I spent two months trying to coordinate dates with a woman who lives in Australia, two different attorneys. The date was set; she was coming to New York. Then I got an email she had liposuction, has to wear a girdle, and cannot fly from Australia, as she needs assistance to put on her girdle on the airplane. So then we say we are not going to pay for a companion to fly to New York, and we Palm Beach Reporting Service, Inc. EFTA00788348

238 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 don't want the liability if she has a blood clot. Australia is far away. So we get a note from her doctor, not to say that she can fly, but that she needs a companion. Then, last week I got -- I'm sorry two weeks ago -- maybe it was last week -- I got an email from yet another attorney telling me that Ms. Roberts will only be produced to testify if we get an order that all of her testimony is confidential and it's under seal. Why am I going to waste the time and money to present her if all of her testimony is going to be confidential and under seal, especially if Mr. Edwards plans on calling her to testify? So I explained in an email that we are not okay with that so we are not going to depose her. We will set it off until such time that we can work it out before the court. THE COURT: At whose expense is she flown? MS. HADDAD COLEMAN: Ours, Judge. And then -- MR. SCAROLA: I'm sorry. I don't think Palm Beach Reporting Service, Inc. EFTA00788349

239 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 you paid yet. MS. HADDAD COLEMAN: Well, we had agreed to -- MR. SCAROLA: It's at her expense as of right now, but they agreed that they would pay for her expenses. And when they objected to confidentiality of the transcript until it was released by order of the court, within less than two hours that request was withdrawn and we were told -- they were told that we are ready to proceed with the deposition without confidentiality, to which we got a response, I'm sorry, we are no longer available. MS. HADDAD COLEMAN: No, Judge, What happen was, the lawyer responded in a lawyer-like fashion, "I understand your position." There was no affirmative statement whatsoever that they will withdraw the confidentiality or anything of that nature. And we wrote back clearly and unequivocally we are putting this off until we can get it before the court. Do not come to this deposition. It is canceled. Done. That was the end of the conversation, Judge. Palm Beach Reporting Service, Inc. EFTA00788350

240 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 There was no expressed waiver of confidentiality. It said, I understand your position. THE COURT: Who set the deposition? MS. HADDAD COLEMAN: It was never noticed, Judge. There's no notice of deposition right now. MR. SCAROLA: She was appearing voluntarily at the defense's request on the date and at the place chosen by the defense. MS. HADDAD COLEMAN: And, Judge, we told them that it wasn't going forward. So if she's in New York, it's not pursuant to the subpoena, nor are we in agreement at this point, because we said it wasn't happening. THE COURT: I hate to see these things happen, because it erodes my faith and confidence in the bar. And anytime that's done, it's a sad day. I don't like to see things occur like this, especially where there's somebody who came from Australia to New York with the expressed purpose of being deposed, and is now no longer being subject to deposition. Palm Beach Reporting Service, Inc. EFTA00788351

241 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 With that said, however, the problem is that, if there was no notice of taking a deposition, if there was no subpoena for her presence and she showed up voluntarily, as a non-party she's entitled to reimbursement of her expenses. But I am not certain that I really can do anything, and I am not going to do anything at this stage to compel her deposition testimony absent some type of iron-clad agreement that I can look at that says that she's going to be deposed on Friday in New York City. If it was equivocal, if it was with conditions, if it was not set forth and cast in stone, then I'm reluctant to do anything other than to say that, again, I'm sorry. These things happen. I'm sorry that we can't move forward. But without the notice and/or subpoena of the witness, without anything other than this back and forth of conditions attributable to the taking of the deposition and nothing, as I said, cast in stone, and without authority, as far as the Court is Palm Beach Reporting Service, Inc. EFTA00788352

242 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 concerned to do anything to compel the deposition on Friday. MR. SCAROLA: Thank you, sir. MR. GOLDBERGER: Your Honor, pursuant to your request earlier this morning, I've given you a -- provided you a copy of the motion. I'm sure Mr. Scarola has many copies, but I provided him another copy. THE COURT: I will just keep this. What I'm going to do is, on motions, such as discovery motions -- since I have gotten so much background today -- if there are motions that can be handled reasonably at 8:45, I would ask that you go ahead set them at that time. MR. SCAROLA: One per day? THE COURT: One per day, if you don't mind. I am not trying to be facetious. I have to be consistent in the way I treat everybody. And since all are subject to that one-per-day rule -- for good reason. The motion calendars have become very, very heavy. There are many who try to set case matters that are really not appropriate for the motion calendar. Palm Beach Reporting Service, Inc. EFTA00788353

243 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I typically allow it to be done because I do read the materials in advance. So if I have it, I can usually digest it to where I can cut down on the time that's necessary to spend to argue and not keep everybody else. MR. SCAROLA: My review of those additional motions, Your Honor, indicates that we probably need to deal directly with the Fifth Amendment privilege issues before we proceed with any further discovery discussions, including the one motion that we will definitely not be able to handle on an 8:45, and that is the motion in limine, the omnibus motion in limine. THE COURT: So you are working right now, Ms. Haddad, on what? MS. HADDAD COLEMAN COLEMAN: Judge, that's what I was going to ask you, on my response to Mr. Scarola's motion to strike the affidavit, even though you said that was moot. THE COURT: What I meant to say was the affidavit and being stricken in conjunction with my consideration of the motion for summary judgment made that aspect of it Palm Beach Reporting Service, Inc. EFTA00788354

244 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 moot. So I should have been a little more clear. But what I was trying to get to is how much time you think you're going to need to get your response in. And then I have offered Mr. Scarola the opportunity to file a reply to that. MS. HADDAD COLEMAN: This is -- just to be specific, this is to his motion to strike the affidavit in the Fifth Amendment motion? THE COURT: Off the record for a second. (A discussion was held off the record.) THE COURT: Back on the record. MS. HADDAD COLEMAN COLEMAN: Judge, I believe I can have a response -- today is Tuesday? THE COURT: Yes. MS. HADDAD COLEMAN: Judge, if I could have until next Friday to get it filed, I believe I can fully brief the issue. Is that acceptable? THE COURT: How much time after that Mr. Scarola, would you like to get your reply? I would suspect a week would be Palm Beach Reporting Service, Inc. EFTA00788355

245 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 enough time. MR. SCAROLA: I am just checking dates, Your Honor. I'm sorry. THE COURT: What I'm conceptualizing is trying to set the hearing sometime between, like, the 23rd of October and the 3rd of November. MR. SCAROLA: That part is a problem. Between the 20th of October and the 3rd of November, I'm in Africa. I'm sorry, was the suggestion that the reply be filed by the 13th of October? THE COURT: Yes. Not the -- MR. SCAROLA: I'm sorry. The response. THE COURT: The response. MR. SCAROLA: The response be filed by the 13th of October. We can have our reply filed by the 20th of October, Your Honor. THE COURT: If that's okay, because, again, the timing was solely to try to fit you in and give you a reasonable amount of time between the 23rd of October the 3rd of November so that I can keep this moving. But if you're away -- I knowing having all the lawyers here, your vacations are Palm Beach Reporting Service, Inc. EFTA00788356

246 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 well deserved. I am not going to compromise that by any means. MR. SCAROLA: I will actually be representing a herd of elephants, sir. It's a business trip. THE COURT: Off the record. (A discussion was held off the record.) MR. SCAROLA: I don't have any problem with the 20th. We will get it in by the 20th. I would prefer to be here for the hearing. THE COURT: That's why I'm saying I'm certainly not going to compromise your vacation to require you to be here. I don't know what your schedule looks like during the earlier part of November, other than I'm sure you're going to be in a jam with others that are going to be demanding your time. I will see what I have available right now. I don't know -- it's going to be the end -- nearing the end of the docket that we are now on, so that usually means a busy time. But what we will do is this. What I Palm Beach Reporting Service, Inc. EFTA00788357

247 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 would like you to do is come in during the week of October 16th at an 8:45 and give me a better idea of availability. I will have -- once you notify me -- and give us a heads-up at my office, you can have your assistant, Mr. Scarola, contact Denise and give her a heads-up when you're coming in so that we can also prepare and give you some type of time. You get back, you said, on the 3rd? MR. SCAROLA: Yes, sir. THE COURT: So we can give you some time as well. We can start contemplating what's available during MR. SCAROLA: Your Honor, I can make it work towards the end of that following week, the week of November 6th, Wednesday, Thursday or Friday. I can move things around to be available to Your Honor if those times work for the Court. MS. HADDAD COLEMAN: I am not in town. I leave Thursday the 4th of November. I have a notice of unavailability filed, Judge. I leave -- I am gone that Thursday and Friday. But I can come Wednesday if Palm Beach Reporting Service, Inc. EFTA00788358

248 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that works. THE COURT: Well, you said the 3rd and 4th. That's Friday and Saturday. Mr. Scarola, I think, is suggesting the 8th, 9th and 10th. MR. GOLDBERGER: The 10th is a court holiday, Your Honor. It's Veteran's Day. MS. HADDAD COLEMAN: Let me look at my book. Maybe we can set the date now. Do you mind if I have my phone out, Judge? THE COURT: I don't have November 10th as a holiday. MR. GOLDBERGER: My assistant told me it's a holiday. THE COURT: You're right. I guess because Veteran's Day is actually the 11th, the observation is the 10th, so that's correct. The calendar doesn't show a holiday, but my official court calendar does, so I apologize. So the 9th and the 10th, I guess -- I'm sorry, the 8th or the 9th is what we are looking at. I don't know where I am. I Palm Beach Reporting Service, Inc. EFTA00788359

249 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have no idea. I am just throwing that out there. MR. SCAROLA: Should we just contact your JA about coordinating something, Your Honor? THE COURT: Well, again what I would like you to do is come in at an 8:45 in a couple of weeks, let's say on October 19th or something -- the 18th or 19th. And that way I can give you a better idea of availability once I have that opportunity to do so. Denise is back, but she had -- most of her day was jury duty. MR. SCAROLA: May we also discuss the motion -- the setting of the motion for temporary stay of proceedings? MR. GOLDBERGER: That's what I was just going to bring up. That's going to be e-filed this evening. MR. SCAROLA: We've actually been handed a copy, and we've been told that it has been filed. We have just received it, but we now have it. THE COURT: Let me look at the 13th of Palm Beach Reporting Service, Inc. EFTA00788360

250 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 October -- we mentioned that date originally for some other reason today. That may be time that I may have. I know there's a one-day hearing or trial. I think it's on that day. And we may have already filled it, because I've been using it quite a bit lately. MR. GOLDBERGER: Judge, you're not going to believe this, but in my new role as a traffic hearing officer, I am the bencher on duty on the afternoon of the 13th. I am available in the morning. THE COURT: Well, let me see what's available. But I know that when we had calendar call I set aside a day, in an abundance of caution, for a case. But again, I know that I have offered it to others, so it might be taken. MR. GOLDBERGER: I know everyone is trying to get out of here, but just a last matter. You ordered us to take Mr. Edwards' depo within 30 days. We now know that Mr. Scarola is going to be chasing elephant herds and prides of lions in Africa for the first portion of that. That kinds of Palm Beach Reporting Service, Inc. EFTA00788361

251 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 shortens our window of opportunity of doing that deposition, unless he has someone else that can sit in for the depo. MR. SCAROLA: I probably do. MR. GOLDBERGER: Great. Okay. THE COURT: Again, I want the record to be clear that, in a case of this type and magnitude -- usually I hold consistent no matter what the case -- but certainly I'm not seeking to compromise anyone's vacation time. They're well deserved. I don't want to put anybody in any form of awkward position simply to accommodate the Court's deadlines. MR. GOLDBERGER: We will see what we can work out with Mr. Scarola's office on that. Thank you, Judge. THE COURT: I am going to keep these materials for now. But what I am going to ask you to do is, anytime there's a resetting of a matter, would you kindly forward to me a courtesy copy and not depend on the amount of stuff that I have? Okay, thank you. Palm Beach Reporting Service, Inc. EFTA00788362

252 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 above proceedings were concluded at 4:43 p.m.) COURT CERTIFICATE STATE OF FLORIDA ) : SS COUNTY OF PALM BEACH ) I, SONJA D. HALL, certify that I was authorized to and did stenographically report the foregoing proceedings and that the transcript is a true record of my stenographic notes. Dated this 9th day of October 2017. SONJA D. HALL Palm Beach Reporting Service, Inc. EFTA00788363