Page 9 of 11 769 So.2d 389 769 So.2d 389, 24 Fla. L. Weekly D2439 (Cite as: 769 So.2d 389) custody proceeding are not considered as "necessary parties" to the action. See Shienvold v. Habit:, 622 So.2d 538 (Fla. 4th DCA 1993). There- fore, it is manifestly obvious that the minor chil- dren in this case are not "parties" to this proceed- ing, and thus the Guardian cannot appear on their behalf. 1121 We are also disturbed by the Guardian's reten- tion of an attorney to represent the Guardian in the appellate proceedings. As noted earlier, on the same day the Guardian filed her notice of appearance "on behalf of the children," an attorney filed a notice of appearance "on behalf of the Guardian." However, this attorney had never been appointed by any court to serve in any capacity in this case. There Is no au- thority permitting a Guardian to retain counsel on behalf of herself in an appeal, where the Guardian is not a party to the proceedings, and where the Guardian is purportedly appearing on behalf of children who are also not parties in the appellate proceedings. See generally Betz v. Betz, 254 Neb. 341, 575 N.W.2d 406, 410 (1998)(e guardian who feels the need to retain an attorney should apply to the appointing court for permission). In conclusion, there is no authority for a Guardian, or an attorney purportedly representing a Guardian, to submit motions or a brief In a child custody ap- pealft" Guardlans*395 render an important ser- vice to the courts of this state, and we recognize that the lines separating the functions of an attorney as Guardian and an attorney as advocate, can be- come easily blurred. We hope the line has now be- come more distinct. FNIO. Nothing in this opinion shall be construed as affecting the role of a Guardi- an In other types of cases, or in the obvious situation where a child Is the real party In- terest. See generally, S.A.P. v. State, Del'? of Health and Rehabilitative Servs., 704 So.2d 583. 585 (Fla. 1st DCA 1997)(minor may not bring action on her own behalf, and can only sue by and through a guardi- an ad litem, next friend or other duly ap- Page 8 pointed representative); Kingsley v. Kings- ley, 623 So.2d 780, 784 (Fla. 5th DCA 1993)(guardian ad !item or next friend is required to represent a minor in a termina- tion of parental rights case), review denied, 634 So.2d 625 (Fla.1994);Fla. R. Civ. P., Rule 1.210(b) (minors do not have legal capacity to initiate legal proceedings in their own names). The Former Wife's motion is granted. The motions filed by the Guardian are stricken, and the Guardi- an, as well as counsel appearing on behalf of the Guardian, are prohibited from filing an appellate brief as a party in these proceedings mm FNII. The Guardian's motion for leave to file an amicus curiae brief pursuant to Florida Rule of Appellate Procedure 9.370 is granted. The Guardian is permitted to file an amicus curiae brief only. Motion to prohibit granted. SHEVIN, Judge, concurs.SORONDO, J. (specially concurring). I agree with the majority that the guardian ad litem does not have standing to file a brief in this case. I write separately because I arrive at the same con- clusion through a somewhat different analysis. Deborah Perez (the mother), argues that the stat- ute's mandate that the guardian "act as next friend of the child, investigator or evaluator, not as attor- ney or advocate," in section 61.401, Florida Stat- utes (1997). precludes the guardian from taking a position in this appeal because the guardian's argu- ments will place her in the role of advocate.mlt The mother further argues that the appointment of the guardian by the lower court does not authorize her to file pleadings in this Court. FN12. Needless to say, the guardian's posi- tion in this case is contrary to that of the mother. Jorge M. Perez (the father), responds that the stat- 0 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&ifm=NotSet&destination=... 6/25/2009 EFTA00180835

Page 10 of 11 769 So.2d 389 769 So.2d 389, 24 Fla. L. Weekly D2439 (Cite as: 769 So.2d 389) me is ambiguous because although it sets forth the language cited above, the statute also makes the guardian a "party." This elevates the guardian to the same level as the other. parties in the case, the father and the mother. As such the guardian has the right to file pleadings with this Court in furtherance of the best interest of the children. When first passed by the Florida Legislature, sec- tion 61.401 Florida Statutes (Supp.1990), as pertin- ent here, read as follows: Appointment of guardian ad litem.-In an action for dissolution of marriage, modification, parental re- sponsibility, custody, or visitation, if the court finds it is in the best interest of the child, the court may appoint a guardian ad litem to represent the child. As relevant to the issues before us, section 61.403, Florida Statutes (Supp.1990), stated: Guardians ad litem; powers and authority.-A guard- ian ad litem when appointed shall act as a repres- entative of the child and shall act in the child's best interest. In 1994, the Legislature amended both statutes. Section 61.401 was amended to read: Appointment of guardian ad litem.-In an action for dissolution of marriage, modification, parental re- sponsibility, custody, or visitation, if the court finds it is in the best interest of the child, the court may appoint a guardian ad !item to act as next friend of the child, investigator or evaluator, not as attorney or advocate. The court in its discretion may also appoint legal counsel for the child to act as attor- ney or advocate; however, the guardian and the legal counsel shall not be the same person. ...The guardian ad litem shall be a party to arty Judicial proceeding from the date of the appointment until the date of discharge. Ch. 94.204, § 3, Laws of Fla. (amending § 61.401, Ha. Stat. (1993))(emphasis added).*396 Section 61.403, as pertinent here, was also amended: Guardians ad them; powers and authority. A guard- ian ad litem when appointed shall act as next friend Page 9 of the child, investigator or evaluator, not as attor- ney or advocate but shall act in the child's best in- terest. Ch. 94-204, § 5, Laws of Pla. (amending § 61.401, Fla. Stat. (1993)) (emphasis added). In 1994, the legislature excised all language con- cerning the "representation" of the child, and in- cluded language specifically stating that the guardi- an was not to act as "attorney or advocate." The amended statute went on to provide that the trial court could appoint counsel for the child to serve that function. The legislature clearly intended that the function of the guardian be one of "next friend" to die child. This role includes the power to invest- igate and evaluate the case, and to make recom- mendations to the trial Judge which are consistent with the best interest of the child. See§ 61.403(5), (8), Fla. Stat. (1997). In short, the guardian's role is to discover, analyze and communicate facts to the Judge which will assist the trial court in the per- formance of its duty to determine the best interest of children in divorce proceedings. The role of ad- vocate for the child, the legislature reserved for counsel, which the court can appoint if it considers appropriate and necessary. The trial Judge In this case did not appoint counsel. The father's argument that the guardian's elevation to the status of "party" gives her the right to file pleadings in this Court is unpersuasive. First, it is clear that the guardian is not a party to this action in the strict and acknowledged sense of the word. In defining the word, Black's Law Dictionary 1122 (6th ed.1990) states:' "Party" is a technical word having a precise mean- ing in the legal parlance; it refers to those by or against whom a legal suit is brought, whether in law or equity, the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons; all others who may be affected by the suit, indirectly or con- sequently, are persons interested but not parties. ID 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.corn/print/printstream.aspx?prft=HTMLE&ifm=NotSet8cdestination=... 6/25/2009 EFTA00180836

Page 11 of 11 769 So.2d 389 769 So.2d 389, 24 Fla. L. Weekly D2419 (Cite as: 769 So.2d 389) See also59 Am.Jur.2d Parties § 7 (1987)(The word party or parties "designates the opposing litigants in a judicial proceeding-the persons seeking to estab- lish a right and those upon whom it is sought to im- pose a corresponding duty or liability ..."). Under this definition the guardian in this case is not a party. Accordingly, the guardian is a "party" in this judicial proceeding only because the legislature has made her such. Because this status is created by statute it can be defined by statute, and the statutes in question do Just that. The legislature first chose to limit the guardian's role as a "party" by forbid- ding her from acting in a certain way, i.e. as an ad- vocate for the child. Next, in section 61.403(2). (3), and (6), the legislature required the guardian to pe- tition the court and file pleadings only through counsel-a "true" party could do so pro se. Finally, the guardian does not become a party at the incep- tion of the litigation or because she has a personal interest, she attains that status by judicial appoint- ment and retains her identity as such only until dis- charged by the judge. Thus, although the legislature has created this special class of "party," it has also defined its limitations. As I read the statute, the guardian does not have a party's right to file plead- ings in this Court because this will, mandatorily, re- quire her to become an advocate. The majority correctly observes that there is no role for the guardian to play in this Court because all factual Issues and determinations have been fully developed below. This Court is in a position to read the record of the lower court, which contains all of the guardian's contributions to this lawsuit. A brief review of that record indicates that the guardian's position is the same as that of the father in this case and has been repeatedly and zealously expressed in both the lower court and this *397 Court. Indeed, the father relies heavily on the recommendations of the guardian. The guardian's presence in this appel- late proceeding is therefore superfluous. I do acknowledge that in certain cases the guardian may serve a valuable role on appeal. Usually, the guardian's recommendations will bolster the legal Page 10 position of one of the parents. There are extraordin- ary cases, however, where the guardian's conclu- sions could be detrimental to both parents. I refer specifically to cases which contain issues concern- ing the parents' mental and emotional stability and cases involving domestic violence and/or child ab- use. In such cases, a guardian could recommend that neither parent be awarded custody or that cus- tody should be predicated upon a particular patent's participation in some type of psychological coun- seling. These cases may call for a guardian to file a brief in an appeal and this Court has the authority, which the majority has chosen to exercise in this case, to allow the guardian to appear as amicus curiae pursuant to rule 9.370 of the Florida Rules of Appellate Procedure" I do not believe that this appeal calls for the guardian's participation. FN13. Even under these circumstances the guardian must seek leave of court to hire counsel. I join the majority in its conclu- sion that the guardian's sua sponte decision to hire counsel in this case, presumably at the expense of the parties, was highly im- proper. Fla.App. 3 Dist.,1999. Perez v. Perez 769 So.2d 389, 24 Fla. L. Weekly D2439 END OF DOCUMENT 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works. http://web2.westlaw.com/print/printstream.aspx?prft=HTMLE&ifm=NotSet&destination=... 6/25/2009 EFTA00180837

.T..-.--... .im i ..5% RECYCLED PAPER TO REORDER CALL 954-846-9399 EFTA00180838

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CRIMINAL DIVISION "W" CASE NO. 502008CF009381AXXMB 502006CF009454AXXMB STATE OF FLORIDA, vs. JEFFREY EPSTEIN, Defendant ORDER THIS MATTER came before the Court on the following: a) Non-party E.W.'s Motion to Vacate Order Sealing Records and Unseal Records b) Palm Beach Post's Motions to Intervene and Petition for Access c) B.B.'s Motions to Intervene and for an Order to Unseal Records d) Jeffrey Epstein's Motion to Make Court Records Confidential A hearing was conducted on these matters on June 25, 2009. The Court notes that Mr. Goldberger, Esq. and Mr. Critton, Esq. were present on behalf of Jeffrey Epstein. Ms. Shullman, Esq. was present on behalf of the Palm Beach Post, Mr. Berger, Esq. and Mr. Edwards, Esq. were present on behalf of E.W., Mr. Kuvin, Esq. was present on behalf of B.B., Assistant State Attorney Barbara Burns was present on behalf of the State of Florida. No appearance was filed on behalf of the United States. After giving an opportunity for all parties to be heard, the Court finds as follows: 1 EFTA00180839

Page Two Case No. 502008CF009381AXXM8/502006CF009454AXXMB 1. The State of Florida charged the Defendant, Jeffrey Epstein, with Felony Solicitation of Prostitution. 2. The State of Florida and Mr. Epstein came to a negotiated resolution of the charges. Part of that resolution included an agreement entered into between Mr. Epstein and the United States. At the plea conference in State court Mr. Epstein plead guilty to the State charges. At the plea conference the agreement between Mr. Epstein and the United States were made part of this Court's record. The agreement was sealed in two separate filings. At the time the State court took these matters under seal, the proper procedure for sealing such documents had not been followed. The June 25th hearing was to give Mr. Epstein, the State, and/or the United States an opportunity to comply with the well-defined and narrow parameters for sealing such documents. After hearing argument of counsel, the Court makes the following findings and rulings: 1) Neither the State of Florida nor the U.S. Government nor Mr. Epstein have presented sufficient evidence to warrant the sealing of documents currently held by the Court. 2) The Motions to seal the Court records are denied. 3) The Motions to intervene are granted. 4) The Motion to unseal the documents is granted. EFTA00180840

Page Three Case No. 502008CF0O9381AXXMB/502006CF009454AXXMB 5) The originals will not be disclosed, however the undersigned will do an in- camera inspection and redact the names of the underage victims, if any, so their identity will be indicated by their Initials. 6) This Order is in no way to be interpreted as permission to not comply with U.S. District Court Kenneth Marra's previous Orders. 7) The disclosure of the sealed documents shall be stayed at least until June 26, 2009, at 9:00 a.m., at which time the Court will hear "Epstein's Motion to Stay Disclosure of Non-Prosecution Agreement and Addendum Pending Review". DONE AND ORDERED in West Palm Beach, Palm Bea ounty, Florida this --os day of June, 2009. Copies furnished: R. Alexander Acosta, U.S. Attorney's Office - Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 Barbara Burns, Esq., State Attorney's Office 401 North Dixie Highway West Palm Beach, FL 33401 William J. Berger, Esq. Bradley 3. Edwards, Esq. Rothstein Rosenfeldt Adler 401 East Las Olas Boulevard., Suite 1650 Ft. Lauderdale, FL 33394 Robert D. Critton, Esq. Burman, Critton, Luttier & Coleman 515 North Flagler Drive, Suite 400 West Palm Beach, FL 33401 EFTA00180841

Page Four Case No. 502008CF009381AXXMB/502006CF009454AXXMB Jack A. Goldberger, Esq. Atterbury, Goldberger & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 Spencer T. Kuvin, Esq. Leopold-Kuvin, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Deanna K. Shullman, Esq. P. O. Box 2602 Tampa, FL 33602 EFTA00180842

= = T s .LEGL RECYCLED PAPER I, TO REORDER CALL 954446-9399 EFTA00180843

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH • COUNTY, FLORIDA CRIMINAL.DIVISION2W" CASE NO. 502008CF009381AXXMB 502006CF009454AXXMB STATE OF FLORIDA, vs. JEFFREY EPSTEIN, Defendant ORDER DENYING MOTION TO STAY DISCLOSURE AGREEMENT THIS MATTER came before the Court at a hearing on June 26, 2009, on Jeffrey Epstein's Motion to Stay the Disclosure of the Non-Prosecutlori4eement and the Addendun? thereto. The. Court notes the parties were present and represented by counsel. Based upor) argument, it is . ORDERED AND ADJUDGED that 1. The Motion to Stay is denied. 2. The Clerk of Court shall make the documents available for disclosure at noon on Thursday, July 2, 2009. It is the intent of the Court to give the Defendant, Mr. Epstein, and his attorney an opportunity to have thii Court's orders reviewed by the 4th DCA. If the Clerk gets no direction froth the Appellate Court, she shall disclose the documents on the date referred to above. DONE AND ORDERED In West Palm Beach, Palm Beach County, Florida this day of June, 2009. ED ANY I5RTED JUN 2 6 2009 JEFFREY J. CO BaiHEFFREYJ. COMM Circuit Court Judge -------, EFTA00180844

Page Two Case No. 502008CF009381AXXMB/502006CF009454AXXMB Order Denying Motion to Stay Disclosure Agreement Copies furnished: R. Alexander Acosta, U.S. Attorney's Office - Southern District 500 South Australian Avenue, Suite 400 West Palm Beach, FL 33401 Barbara Burns, Esq., State Attorney's Office 401 North Dixie Highway West Palm Beach, FL 33401 William J. Berger, Esq. Bradley J. Edwards, Esq. Rothstein Rosenfeldt Adler 401 East Las Olas Boulevard., Suite 1650 Ft. Lauderdale, FL 33394 Robert D. Critton, Esq. Burman, Critton, Luther & Coleman 515 North Flagier Drive, Suite 400 West Palm Beach, FL 33401 Jack A. Goldberger, Esq. Atterbury, Goldberger & Weiss, PA. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 Spencer T. Kuvin, Esq. Leopold-Kuvin, P.A. 2925 PGA Boulevard, Suite 200 Palm Beach Gardens, FL 33410 Deanna K. Shuilman, Esq. P. O. Box 2602 Tampa, FL 33602 EFTA00180845

.r.lys.••••mit .M.I.•• •••••• RECYCLED PAPER TO REORDER CALL 954-841.9399 EFTA00180846

1 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT 2 IN AND FOR PALM BEACH COUNTY, FLORIDA CRIMINAL DIVISION 3 STATE OF FLORIDA ) 4 ) vs. ) CASE No. 2008CF009381AXX 5 ) JEFFREY EPSTEIN, ) 6 ) CERTIFIED COPY Defendant. ) 7 ) 8 PROCEEDINGS BEFORE THE COURT 9 PRESIDING: HONORABLE JEFFREY COLBATH 10 APPEARANCES: 11 ON BEHALF OF THE STATE: 12 BARRY E. KRISCHER, ESQUIRE State Attorney 13 401 North Dixie Highway West Palm Beach, Florida 33401 14 By: BARBARA BURNS, ESQUIRE Assistant State Attorney 15 ON BEHALF OF THE DEFENDANT: 16 JACK GOLDBERGER, ESQUIRE 250 S Australian Ave Ste 1400 17 West Palm Beach, Florida 33401 And 18 ROBERT CRITTON, ESQUIRE 515 N Flagler Dr Ste 400 19 West Palm Beach, Florida 33401 20 ON BEHALF OF THE PALM BEACH POST: DEANNA SHULLMAN, ESQUIRE 21 Thomas, LoCicero & Bralow 101 N.E. 3rd Avenue - Ste 1500 22 Fort Lauderdale, Florida 33301 23 ON BEHALF OF EW, THE INTERVENER: WILLIAM J. BERGER, ESQUIRE 24 BRAD EDWARDS, ESQUIRE 225 NE Mizner Blvd Ste 675 25 Boca Raton, Florida 33432 SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180847

1 ON BEHALF OF EB, MOTION INTERVENER'S PLEADING: 2 SPENCER KUVIN, ESQUIRE 2925 PGA Blvd Ste 200 3 Palm Beach Gardens, Florida 33410 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 June 25, 2009 24 Palm Beach County Courthouse West Palm Beach, Florida 33401 25 Beginning at 1:50 o'clock, p.m. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180848

1 BE IT REMEMBERED that the following 2 proceedings were had in the above-entitled cause 3 before the HONORABLE JEFFREY COLBATH, one of the 4 judges of the aforesaid court, at the Palm Beach 5 County Courthouse, located in the City of West 6 Palm Beach, State of Florida on June 25, 2009 7 beginning at 1:50 o'clock, p.m. with appearances 8 as hereinbefore noted, to wit: 9 THEREUPON: 10 THE COURT: Let me call up the case 11 of the state of Florida versus Jeffrey 12 Epstein. Let me have counsel announce 13 their appearances for the record. 14 MS. SHULLMAN: Deanna Shullman of 15 16 17 18 you again, good morning. 19 MS. SHULLMAN: You too. 20 MR. GERBER: William J. Berger for 21 EW, the intervener. 22 MR. EDWARDS: Brad Edwards also on 23 behalf of the EW. 24 MR. KUVIN: Spencer Kuvin on behalf 25 of EB, motion intervener's pleading. Thomas, LoCicero & Bralow on behalf of the Palm Beach Post. THE COURT: Ms. Shullman, nice to see SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180849

4 1 MR. GOLDBERGER: Good afternoon, 2 Judge, Jack Goldberger and Robert Critton 3 on behalf of Jeffrey Epstein. 4 THE COURT: And I'm guessing that, 5 Mr. Kuvin, if I grant the motion to unseal 6 that which has been sealed, your motion to 7 intervene will be moot. 8 MR. KUVIN: Will be. 9 THE COURT: I thought so. This is 10 what I'm thinking and -- oh, we've got 11 more. 12 MS. BURNS: One more appearance, 13 excuse me, Judge, Barbara Burns on behalf 14 of the state of Florida, the state 15 attorney's office of the 15th Judicial 16 Circuit. 17 THE COURT: All right. Procedurally, 18 I think the way that this came to us is 19 that at the conclusion or at some point 20 during a plea conference between the state 21 of Florida and Mr. Epstein, the state and 22 the defense hand an agreed order to 23 Judge Puccillo. 24 MS. BURNS: Puccillo. 25 THE COURT: And asked her to sign an SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180850

1 agreement to seal some portion of some 2 documents, which she signed off on and now 3 it is the intervener's and the Post's 4 motion to unseal those documents; is that 5 kind of procedurally where we are? 1 6 MR. GOLDBERGER: Procedurally not 7 exactly correct, I don't know if you want 8 me to clarify that. 9 THE COURT: Please do. 10 MR. GOLDBERGER: Your Honor, this 11 started during the course of a plea 12 colloquy in Mr. Epstein's state proceeding 13 before Judge Puccillo, who is a retired 14 senior judge who was filling in for 15 Judge McSorley on that day, who was the 16 judge assigned to this division. It was a 17 plea agreement with the state attorney's 18 office and it is normal and consistent with 19 any plea colloquy Judge Puccillo asked the 20 defense whether there were any other 21 promises or inducements for Mr. Epstein to 22 enter into his plea agreement other than 23 what was contained in the state standard 24 plea agreement that we had. I felt 25 obligated under the circumstances to alert SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180851

6 1 to the Court that there was a confidential 2 agreement between Mr. Epstein's -- 3 Mr. Epstein's attorneys and the United 4 States attorney's office for the Southern 5 District of Florida which would have been 6 triggered upon the successful taking of the 7 plea by Judge Puccillo. 8 In other words, if the plea was 9 accepted by Judge Puccillo, there's a 10 confidential agreement between U.S. 11 attorney's office and the defense that 12 would be triggered and they would agree not 13 to take some actions against Mr. Epstein. 14 I advised Judge Puccillo of that, and at 15 that time she said she would like to see 16 the matter sealed in the court file. I 17 said fine, and then we later -- I then 18 filed that document, and the clerk's office 19 notified me and said we need an order 20 sealing this, and we submitted an order to 21 seal the document. 22 THE COURT: All right. Is there 23 anybody here from the U.S. attorney's 24 office? Has anybody notified them, or is 25 there a dog in this fight or do they care? SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180852

1 If they're a party to this confidential 2 thing, wouldn't you think that they might 3 be. 4 MR. GOLDBERGER: Your Honor, they 5 have been noticed. They have taken a 6 position in parallel proceedings that this 7 matter should remain confidential, and they 8 have done that in federal court, and I 9 believe that is their position still. 10 MR. EDWARDS: Your Honor, I have been 11 in communication with the U.S. attorney's 12 office, and they are not taking a position 13 on this issue, which is why they're not in 14 court right now. 15 THE COURT: What's going on in 16 federal court? 17 MR. GOLDBERGER: There are a number 18 19 20 21 22 23 24 25 of civil cases that are pending right now. THE COURT: And they're talking about the same documents that are under seal here in our court? MR. EDWARDS: Yes. MR. GOLDBERGER: Yes, your Honor, and I will address that at the appropriate time what's going on here. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180853

8 1 1 1 . I 1 THE COURT: All right. So thank you, 2 Mr. Goldberger for getting that 3 straightened out. 4 MR. GERBER: Judge, just to clarify 5 one other point. 6 THE COURT: Sure. 7 MR. GERBER: I think actually there's 8 an additional step because Mr. Goldberger 9 on behalf of Mr. Epstein or Mr. Critton I 10 believe filed motion, and I think that that 11 will tell us who goes first today and who 12 has the burden today. 13 THE COURT: This is -- and I'm 14 thinking outloud that my take on that is 15 that my review of the file shows that the 16 appropriate steps to seal these documents 17 wasn't followed initially. I'm looking at 18 it as it would be whoever's moving to have 19 them sealed, it's their burden to prove the 20 steps that you have to prove to get things 21 sealed by the Court, and so that's -- I 22 hinted last meeting that we all had 23 together but that's where I'd go, so I'd 24 shift the burden over to the federal 25 government and to Mr. Epstein, that's what SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180854

9 1 I'm thinking. Let me ask first go over to 2 the Post, Ms. Shullman, what are your 3 thoughts on that procedure? 4 MS. SHULLMAN: Your Honor, I think 5 that's the correct procedure here. I think 6 Mr. Epstein's motion to make court records 7 confidential tacitly admits what we 8 suspected last time, which was that the 9 initial closure of the documents was not 10 done pursuant to the acceptable procedures. 11 THE COURT: All right. Mr. Berger, 12 Mr. Edwards, that's all right with you? 13 MR. EDWARDS: We agree. 14 MR. GERBER: That's what my point 15 was, yes, your Honor, thank you. 16 THE COURT: Mr. Goldberger, what do 17 you think? 18 MR. GOLDBERGER: That's fine, your 19 Honor, with the -- I'll wait until after 20 the proceeding. 21 THE COURT: All right. You may 22 proceed. 23 MR. GOLDBERGER: Judge, as I said to 24 clarify the record, this matter started 25 during the course of Mr. Epstein's plea 1 SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180855

10 1 1 colloquy in state court and just so that 2 the record was clear that all inducements 3 for Mr. Epstein's plea was on the record 4 when Judge Puccillo asked me if there had 5 been any promises made to Mr. Epstein, I 6 think properly and ethically we told the 7 Court that there was an agreed -- 8 confidential agreement with the federal 9 government that was in place that basically 10 said we will not prosecute Mr. Epstein for 11 federal offenses if the state plea 12 agreement is accepted by the Court and 13 Mr. Epstein's sentence is imposed. 14 The state proceeding was over at the 15 time that I advised Judge Puccillo that, in 16 other words, we had gone through the plea 17 colloquy and I simply was advising her of 18 this other agreement. It was 19 Judge Puccillo who then asked us to 20 approach, and the Court has a copy of that 21 transcript, I believe. It was 22 Judge Puccillo that said I'd like to have 23 that document sealed in the court file, and 24 I acquiesced to that, I said that's fine. 25 So, first, as a preliminary matter, SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180856

1 2 3 4 5 6 7 8 9 11 it wasn't like we were coming into court on that day and asking to seal something, so it would have been presumptuous of me to file something to request to have something sealed when it came up during the course of the proceeding, and, in fact, the committee notes on the rule of judicial administration talk about that and say matters come up all the time during the 10 course of hearings and the fact that 11 something is not filed in advance does not 12 necessarily taint the entire process, so we 13 . agreed to come forward and file our motion 14 to seal after the fact, because we didn't 15 know this matter would be coming up. 16 But having said that, Judge, this 17 confidential agreement was not part of any 18 state plea agreement, it's not part of the 19 proceedings, it was ancillary to the state 20 proceedings and it had nothing to do with 21 the state proceedings. As an accommodation 22 to Judge Puccillo, we filed it in the court 23 file. Quite frankly, it's unnecessary, it 24 doesn't need to be there, and the simplest 25 approach would be to simply remove it from SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180857

13 1 whether this nonprosecution agreement 2 should be released to the plaintiffs for 3 their use. 4 Judge Marra heard two hearings on this matter and the court has those orders. 6 And in the first hearing Judge Marra very, 7 very, carefully balanced the 8 confidentiality issues of the 9 nonprosecution agreement, the intent of the 10 parties as well of the rules of criminal 11 procedure that I will talk about in a 12 moment, with the plaintiff's right to know 13 what's going on and to have access to this 14 agreement. And Judge Marra crafted an 15 order and in the nature of a protective 16 order and said, plaintiffs, you can have 17 this nonprosecution agreement, you can use 18 it, you can review it, you cannot give it 19 to anyone else other than your clients, and 20 if you want to use it or you want to give 21 it to your clients, you need to tell them 22 about this order that is not to be 23 disclosed to anybody else. And these 24 plaintiffs that are sitting here will tell 25 you that from day one they have had this SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180858

14 1 2 3 nonprosecution agreement, they have it for their use, they know every clause that's in that nonprosecution agreement, and I 4 suggest to the Court as to their motions 5 why are we here; they have an agreement 6 already. 7 They went back to Judge Marra 8 sometime thereafter and asked the Court to 9 expand their use of the nonprosecution 10 agreement, and they said, Judge Marra, we 11 have the nonprosecution agreement but we 12 would like to be able to disclose that 13 agreement to other sides, and Judge Marra 14 in another carefully crafted order said, 15 nuh-uh, no, you have not satisfied your 16 burden, you cannot disseminate this to 17 anyone else, and the order that I have 18 entered remains in place, but most 19 significantly he said, you know what, this 20 is without prejudice. 21 If you have some basis, you have some 22 need that you have not briefed, you have 23 not litigated with me yet concerning 24 dissemination of nonprosecution agreement, i 25 come back to me and I'll review it for you. SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180859

17 i I 1 absolutely 100 percent protected from 2 disclosure by Federal Rule of Criminal 3 Procedure Six. I have a copy of that rule 4 for the Court. 5 THE COURT: Let me take a look of 6 that, please. 7 MR. GOLDBERGER: Give us one moment, 8 your Honor, we have it here somewhere. 9 MR. KUVIN: Your Honor, just briefly 10 while they're looking on behalf of the 11 plaintiff EB, I just wanted to point out on 12 my client motion to intervene, we are not 13 party to the federal action. She only has 14 a state court claim. She's not bound by 15 any federal court order, she is not with 16 the federal court on their claim, so as to 17 that issue, my client stands here 18 synonymous with the Post. 19 THE COURT: Thank you for pointing 20 that out to me. 21 MR. GOLDBERGER: We'll have it for 22 you in one moment, your Honor. 23 Your Honor, Federal Rule of Criminal 24 Procedure Six is a rule that deals with 25 grand jury proceedings, and it confers in SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180860

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 the federal system secrecy of all grand jury matters and it's pretty clear in this case that the nonprosecution agreement specifically talks about a grand jury investigation of Mr. Epstein, there's specific reference to a grand jury investigation in the nonprosecution agreement. The rule does not prevent us from telling the Court that there was a jury investigation of Mr. Epstein, it prevents us from doing, what it grand but what prevents this Court from doing, I believe, is disclosing the content of the grand jury investigation, and the agreement itself is very specific as to the grand jury investigation of Mr. Epstein. However, all is not lost for the Palm Beach Post and the intervenors, for that matter. The rule has a specific procedure that allows you to go to the district court where the grand jury is case it would be in the of Florida before Judge convened, in this Southern District Marra and that is under Rule 6E, your Honor, I think it's 6E SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180861

19 1 3E actually. It says: In limited 2 circumstances the Court may authorize 3 disclosure of grand jury matters under 4 request made in connection with the 5 judicial proceeding, so -- and the rule 6 goes onto clearly say, that request must be 7 filed in the district where the grand jury 8 is proceeding. 9 So the first you know the Palm 10 Beach Post may have first amendment rights 11 to access but those first amendment rights 12 cannot circumvent the federally protected 13 secrecy of grand jury proceedings and 14 that's what the Post is doing by making 15 this request before this Court. 16 This matter has been sealed for 17 almost a year now, 11 months and some days 18 and the Palm Beach Post has not filed 19 anything in this matter until most 20 recently, and their remedy is to go into 21 the federal court and invoke the process of 22 Rule Six and asked Judge Marra to make a 23 limited disclosure of the nonprosecution 24 agreement and the grand jury matters that 25 are contained therein. Who knows whether SUSAN WIGGINS, R.P.R. AND OFFICIAL COURT REPORTER EFTA00180862