IN THE CIRCUIT COURT OF THE

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT, IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO.: 502009CA040800XXXXMBAG JEFFREY EPSTEIN, Plaintiff(s), vs. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and M, individually, Defendant(s). =tOUNTER-PLAINTIFF, EDWARDS' SECOND RENEWED MOTION FOR LEAVE TO ASSERT CLAIM FOR PUNITIVE DAMAGES Counter-plaintiff, BRADLEY J. EDWARDS, moves this Honorable Court for entry of an Order granting him leave to assert a claim for punitive damages against the Counter-defendant, 'JEFFREY EPSTEIN, and in support thereof would show that the evidente summarized herein satisfies the statutory prerequisites for the assertion of a punitive damage claim. Specifically, the evidence establishes that EPSTEIN's Complaint against EDWARDS; 1. was filed in the total absence of evidence to support any allegation of wrongdoing on the part of EDWARDS; 2. was filed in the total absence of evidence that EPSTEIN had sustained damage as a consequence of any misconduct other than his own well-established criminal enterprise; 3. was filed in the absence of any intention to meet his own obligation to provide relevant and material discovery; EFTA01120533 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages 4. was filed for the sole purpose of attempting to intimidate both EDWARDS and EDWARDS' clients and others into abandoning their legitimate claims against EPSTEIN. APPLICABLE LAW To plead a claim for punitive damages, the claimant must show a "reasonable basis" for the recovery of such damages. See Fla.R.Civ.P. 1.190(f); see also Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla. 1995). The showing required to amend is minimal. As stated in State of Wis. Inv. v. Plantation Square Assoc., 761 F. Supp. 1569, 1580 (S.D. Fla..1991): [T] he court believes it must tiltimately be a lesser standard than that required for summary judgment. Though the burden is on [the plaintiff] to survive a §768.72 challenge of insufficiency, see Will v. Systems Engineering Consultants, 554 So.2d 591, 592 (Fla. 3"I DCA 1989), the standard of proof required to assert Plaintiff's punitive claim must be lower than that needed to survive a summary adjudication on its merits. As the Florida courts have noted, a §768.72 challenge more closely resembles a motion to dismiss that additionally requires an evidentiary proffer and places the burden of persuasion on the plaintiff. Id. In considering a motion to dismiss, factual adjudication is inappropriate as all facts asserted—or here, reasonably established—by the plaintiff are to be taken as true. Conley v. Gibson, 355 U.S. 41, at 45-46, 78 S. Ct. 99, at 101-102, 2 L.Ed. 2d 80, 1581 at 84. As such, the court has given recognition only to those assertions of the defendants which would show Plaintiff's factual bases to be patently false or irrelevant, and has paid no heed whatsoever to the defendants' alternative evidentiary proffers. State of Wis. Inv., 761 F. Supp. At 1580; see also Dolphin Cove Assn. v. Square D. Co., 616 So. 2d 553 (Fla. 2d DCA 1993) ("Prejudging the evidence is not a proper vehicle for the court's denial of the motion to amend" to assert punitive damages claim). 2 EFTA01120534 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages Section 768.72 provides for the amendment of a complaint either through evidence in the record or "proffered by the claimant." As the statute suggests, a proffer of evidence in support of a punitive damage claim is sufficient and a formal evidentiary hearing is not required. See Strasser v. Yalmanchi, 677 So.2d 22, 23 (Fla. 4th DCA 1996), rev. dismissed, 699 So.2d 1372 (Fla. 1997); Solis v. Calvo, 689 So.2d 366, 369, n.2 (Fla. 3d DCA 1997). In fact, a hearing is not even required provided the trial court identifies the filings of the parties and indicates that its decision to grant the motion is based upon a review of the file and the respective documents filed. The United Stites District Court for the Middle Disttict of Florida has spoken dearly on the nature of a proffer in support of a motion to amend to assert a claim for punitive damages in Royal Marco Point I Condo. Ass'n, Inc. v. QBE Ins. Corp., 2010 WL 2609367 (M.D. Fla. June 30, 2010). As the Court stated: It is important to emphasize, at the outset, the limited nature of the review a court may undertake in considering the sufficiency of an evidentiary proffer under Fla. Stat. §768.72. Courts reviewing such proffers have recognized that "a `proffer' according to traditional notions of the teen, connotes merely an `offer' of evidence and neither the term standing alone nor the statute itself calls for an adjudication of the underlying veracity of that which is submitted, much less for countervailing evidentiary submissions." Estate of Despain v. Avante Group, Inc., 900 So.2d 637, 642 (Fla. 5th DCA 2005) (quoting State of Wisconsin Investment Board v. Plantation Square Associates, Ltd., 761 F. Supp. 1569, 1581 n. 21 (S.D. Fla. 1991)). Therefore, "an evidentiary hearing where witnesses testify and evidence is offered and scrutinized under the pertinent evidentiary rules, as in a trial, is neither contemplated nor mandated by the statute in order to determine whether a reasonable basis has been established to plead punitive damages." Id. (collecting cases). 3 EFTA01120535 Edwards adv. Epstein Case No.: 502009CA040800XXXXM BAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages It is thus neither necessary nor appropriate for a court to make evidentiary rulings, weigh rebuttal evidence, or engage in credibility determinations in considering the sufficiency of the proffer. "...a proffer should be evaluated by standards akin to those governing a motion to dismiss, where the truth of the plaintiff's allegations are assumed, and not the more rigorous summary judgment standard, where the opposing party must show that there is sufficient admissible evidence in the record to support a reasonable jury finding in his favor." I. INTRODUCTION The pleadings and discovery taken to date as confirmed by Epstein's voluntary dismissal of all claims brought by him against Bradley J. Edwards, show that there is an absence of competent evidence to demonstrate that Edwards participated in any fraud against Epstein, show the propriety of every aspect of Edwards' involvement in the prosecution of legitimate claims against Epstein, and further support the conclusion that Epstein sued Edwards out of malice and for the purpose of intending to intimidate Edwards and Edwards' clients into abandoning or compromising their legitimate claims against Epstein. Epstein sexually abused three clients of Edwards — E, E, and Jane Doe — and Edwards properly and successfully represented them in a civil action against Epstein. Nothing in Edwards's capable and competent representation of his clients could serve as the basis for a civil lawsuit against him. Allegations about Edwards's participation in or knowledge of the use of the civil actions against Epstein in a "Ponzi Scheme" were never supported by probable cause or any competent evidence and could never be supported by competent evidence as they are entirely false. 4 EFTA01120536 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages A. Epstein's Complaint Epstein's Second Amended Complaint essentially alleged that Epstein was damaged by Edwards, acting in concert with Scott Rothstein (President of the Rothstein Rosenfeldt Adler law firm ("RRA") where Edwards worked for a short period of time). Epstein appeared to allege that Edwards joined Rothstein in the abusive prosecution of sexual assault cases against Epstein to "pump" the cases to Ponzi scheme investors. As described by Epstein, investor victims were told by Rothstein that three minor girls who were sexually assaulted by Epstein: M., M., and Jane Doe were to be paid up-front money to prevent those girls from settling their civil cases against Epstein. In Epstein's view, these child sexual assault cases had "minimal value" (Complaint & 42(h)), and Edwards's refusal to force his clients to accept modest settlement offers was claimed to breach some duty that Edwards owed to Epstein. Interestingly, Epstein never states that he actually made any settlement offers. The supposed "proof" of the Complaint's allegations against Edwards includes Edwards's alleged contacts with the media, his attempts to obtain discovery from high-profile persons with whom Epstein socialized, and use of "ridiculously inflammatory" language in arguments in court. Remarkably, Epstein has filed such allegations against Edwards despite the fact that Epstein had sexually abused each of Edwards's clients and others while they were minors. Indeed, in discovery Epstein has asserted his Fifth Amendment privilege rather than answer questions about the extent of the sexual abuse of his many victims. Even more remarkably, since filing his suit against Edwards, Epstein settled the three cases Edwards handled for an amount that Epstein insisted be kept confidential. Without violating the strict 5 EFTA01120537 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages confidentiality terms required by Epstein, the cases did not settle for the "minimal value" that Epstein suggested in his Complaint. Because Epstein relies upon the alleged discrepancy between the "minimal value" Epstein ascribed to the claims and the substantial value Edwards sought to recover for his clients, the settlement amounts Epstein voluntarily agreed to pay while these claims against Edwards were pending will be disclosed to the court in-camera. B. Summary of the Argument The claims against Bradley J. Edwards, Esq., were frivolous for at least three separate reasons. First, because Epstein elected to hide behind the -shield of his right against self- incrimination to preclude his disclosing any relevant information about the criminal activity at the center of his claims, he was barred from prosecuting his case against Edwards. Under the well-established "sword and shield" doctrine, Epstein could not legitimately seek damages from Edwards while at the same time asserting a Fifth Amendment privilege to block relevant discovery. His case was therefore subject to summary judgment and on the eve of the hearing seeking that summary judgment Epstein effectively conceded that fact by voluntarily dismissing his claims. Second, all of Edwards' conduct in the prosecution of valid claims against Epstein was protected by the litigation privilege, a second absolute legal bar to Epstein's claims effectively conceded by his voluntary dismissal. Third, and most fundamentally, Epstein's lawsuit was not only unsupported by both the applicable law, it was based on unsupported factual allegations directly contradicted by all of the 6 EFTA01120538 Edwards ads'. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages record evidence. From the beginning, Edwards diligently represented three victims of sexual assaults perpetrated by Epstein. As explained in detail below, each and every one of Edwards's litigation decisions was grounded in proper litigation judgment about the need to pursue effective discovery against Epstein, particularly in the face of Epstein's stonewalling tactics. Edwards's successful representation finally forced Epstein to settle and pay appropriate damages. Effective and proper representation of child victims who have been repeatedly sexually assaulted cannot form the basis of a separate, "satellite" lawsuit, and therefore Edwards is entitled to summary judgment on these grounds as well. The truth is the record is entirely devoid of any evidence to support Epstein's claims and is completely and consistently corroborative of Edwards's sworn assertion of innocence. Put simply, Epstein made allegations that have no basis in fact. To the contrary, his lawsuit was merely a desperate measure by a serial pedophile to prevent being held accountable for repeatedly sexually abusing minor females. Epstein's ulterior motives in filing and prosecuting this lawsuit are blatantly obvious. Epstein's behavior is another clear demonstration that he feels he lives above the law and that because of his wealth he can manipulate the system and pay for lawyers to do his dirty work - even to the extent of having them assert baseless claims against other members of the Florida Bar. Every one of Epstein's Complaints against Edwards was nothing short of a far-fetched fictional fairy-tale with absolutely no evidence whatsoever to support his preposterous claims. It was his last ditch effort to escape the public disclosure by Edwards and his clients of the nature, extent, and sordid details of Epstein's life as a serial child molester. 7 EFTA01120539 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages ARGUMENT II. THE RECORD AND PROFFERED EVIDENCE ESTABLISHES THAT EDWARDS'S CONDUCT COULD NOT POSSIBLY FORM THE BASIS OF ANY LIABILITY IN FAVOR OF EPSTEIN A. The Summary Judgment Standard. Rule 1.510(c), Florida Rules of Civil Procedure, provides that a court may enter summary judgment when the pleadings, depositions and factual showings reveal that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. See Snyder v. Cheezem Development Corp., 373 So. 2d 719, 720 (Fla. 2d DCA 1979); Rule 1.510(c), Fla. R. Civ. P. Once the moving party conclusively establishes that the nonmoving party cannot prevail, it is incumbent on the nonmoving party to submit evidence to rebut the motion for summary judgment. See Holl v. Talcott, 191 So. 2d 40, 43 (Fla. 1966). It is not enough for the opposing party merely to assert that an issue of fact does exist. Fisel v. Wynns, 667 So.2d 761, 764 (Fla.1996); Landers v. Milton, 370 So.2d 368, 370 (Fla.1979) (same). Moreover, it is well-recognized that the non-moving party faced with a summary judgment motion supported by appropriate proof may not rely on bare, conclusory assertions found in the pleadings to create an issue and thus avoid summary judgment. Instead, the party must produce counter-evidence establishing a genuine issue of material fact. See Bryant v. Shands Teaching Hospital and Clinics, Inc., 479 So.2d 165, 168 (Fla. 1st Dist. Ct. App. 1985); see also Lanzner v. City of North Miami Beach, 141 So.2d 626 (Fla. 3d Dist Ct. App. 1962) (recognizing that mere contrary allegations of complaint were not sufficient to preclude summary 8 EFTA01120540 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages judgment on basis of facts established without dispute). Where the nonmoving party fails to present evidence rebutting the motion for summary judgment and there is no genuine issue of material fact, then entry of judgment is proper as a matter of law. See Davis v. Hathaway, 408 So. 2d 688, 689 (Fla. 2d Dist. Ct. App. 1982); see also Ho!!, 191 So. 2d at 43. Faced with these well-established legal principles, Epstein voluntarily dismissed his claims against Edwards on the eve of the hearing on Edwards Motion for Summary Judgment. B. Epstein's Claim Regarding Edwards Had Absolutely No Factual Basis. This was not a complicated case for granting summary judgment. To the contrary, the uncontested record clearly established that each and every one of-Epstein's claims against Edwards lacked any merit whatsoever.' 1. Epstein's allegations regarding Edwards' involvement in Rothstein's "Ponzi Scheme" were unsupported and unsupportable because Edwards was simply not involved in any such scheme. a. Edwards Had No Involvement in the Ponzi Scheme. The bulk of Epstein's claims against Edwards hinged on the premise that Edwards was involved in a Ponzi scheme run by Scott Rothstein. Broad allegations of wrongdoing on the part of Edwards were scattered willy-nilly throughout the complaint. None of the allegations provided any substance as to how Edwards actually assisted the Ponzi scheme, and allegations that he "knew or should have known" of its existence are based upon an impermissible pyramiding of inferences. In any event, these allegations all fail for one straightforward reason: The dismissal of Epstein's claims against Edwards did not affect Epstein's claims against Scott Rothstein. Epstein had already chosen to dismiss all of his claims against the only other defendant named in the suit. 9 EFTA01120541 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG $econd Renewed Motion for Leave to Assert Claim for Punitive Damages Edwards was simply not involved in any Ponzi scheme. lie has provided sworn testimony and an affidavit in support of that assertion (attached), and there is not (and could never be) any contrary evidence. Edwards was deposed at length in this case. As his deposition makes crystal clear, he had no knowledge of any fraudulent activity in which Scott Rothstein may have been involved. See, e.g., Edwards Depo. at 301-02 (Q: " . . . [WJere you aware that Scott Rothstein was trying to market Epstein cases . . . ?" A: "No."). Edwards supplemented his deposition answers with an Affidavit that declares in no uncertain terms his lack -of involvement in any fraud perpetrated by Rothstein. See, e.g.,- -- Edwards Affidavit attached to Statement of Undisputed Material Facts as Exhibit "N" at ¶8-10, ¶20, ¶22-23. Rothstein has also given sworn testimony (attached) in which he has clearly and unequivocally sworn that Edwards had absolutely no knowledge of or participation in the Ponzi scheme. Indeed, no reasonable juror could find that Edwards was involved in the scheme, as Edwards joined RRA well after Rothstein began his fraud and would have been already deeply in debt. In fact, the evidence of Epstein's crimes is now clear, and Edwards's actions in this case were entirely in keeping with his obligation to provide the highest possible quality of legal representation for his clients to obtain the best result possible. In view of this clear evidence rebutting all allegations against Edwards, Epstein was obliged to "produce counter-evidence establishing a genuine issue of material fact." See Bryant v. Shands Teaching Hospital and Clinics, Inc., 479 So.2d 165, 168 (Fla. 1st Dist. Ct. App. 1985) in order to avoid summary judgment. Epstein could not and did not even attempt to do this. 10 EFTA01120542 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages Indeed, when asked at his deposition whether he had any evidence of Edwards's involvement, Epstein declined to answer, purportedly on attorney-client privilege grounds: Q. I want to know whether you have any knowledge of evidence that Bradley Edwards personally ever participated in devising a plan through which were sold purported confidential assignments of a structured payout settlement? . . . A. I'd like to answer that question by saying that the newspapers have reported that his firm was engaged in fraudulent structured settlements in order to fleece unsuspecting Florida investors. With respect to my personal knowledge, I'm unfortunately going to, today, but I look forward to at some point being able to disclose it, today I'm going to have to assert the attorney/client privilege. See Deposition of Jeffrey Epstein, Mar. 17, 2010 (hereinafter "Epstein Depo.") at 67-68. Therefore summary judgment would clearly have been granted for Edwards on all claims involving any Ponzi scheme by Rothstein had the issue not been mooted by Epstein's dismissal of his claims. b. Epstein's Allegations of Negligence by Edwards Were Unfounded and Not Actionable in Any Event. In his Second Amended Complaint Epstein recognized at least the possibility that Edwards was not involved in any Rothstein Ponzi scheme. Therefore, seemingly as a fallback, Epstein alleged without explanation that Edwards "should have known" about the existence of this concealed Ponzi scheme. Among other problems, this fallback negligence position suffers the fatal flaw that it does not link at all to the intentional tort of abuse of process alleged in the complaint. Epstein's negligence claim was also deficient because it simply fails to satisfy the requirements for a negligence cause of action: 11 EFTA01120543 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages "Four elements are necessary to sustain a negligence claim: 1. A duty, or obligation, recognized by the law, requiring the [defendant] to conform to a certain standard of conduct, for the protection of others against unreasonable risks. 2. A failure on the [defendant's] part to conform to the standard required: a breach of the duty . . . . 3. A reasonably close causal connection between he conduct and the resulting injury. This is what is commonly known as 'legal cause,' or 'proximate cause,' and which includes the notion of cause in fact. 4. Actual loss or damage. Curd v. Mosaic Fertilizer, LLC, So.2d , 2010 WL 2400384 at *9 (Fla. 2010). Epstein did not allege a particular duty on the part of Edwards that has been breached. Nor could Epstein explain how any breach of the duty might have proximately caused him actual damages. Summary judgment was therefore appropriate for these reasons as well. Finally, for the sake of completeness, it is worth noting briefly that no reasonable jury could find Edwards to have been negligent in failing to anticipate that a managing partner at his law firm would be involved in an unprecedented Ponzi scheme. Scott Rothstein deceived not only Edwards but also more than 60 other reputable lawyers at a major law firm including multiple respected former judges. Cf . Sun Sentinel, Fort Lauderdale, Dec. 11, 2009, 2009 WLNR 25074193 at *1 ("Sure, some outlandish John Grisham murder plot[s] sound far-fetched. But if you asked me a few months ago if Scott Rothstein was fabricating federal court orders and forging a judge's signature on documents to allegedly fleece his friends, as federal prosecutors allege, I would have said that was far-fetched, too."). No reasonable lawyer could have expected that a fellow member of the bar would have been involved in such a plot. Nobody seemed to know of Rothstein's Ponzi scheme, not even his best friends, or the people he did business with on a daily basis, or even his wife. Many of the attorneys at RRA had been there for years and 12 EFTA01120544 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages knew nothing. Edwards was a lawyer at RRA for less than 8 months and had very few personal encounters with Rothstein during his time at the firm, yet Epstein claims that he should have known of Rothstein's intricate Ponzi scheme. No doubt for this reason the U.S. Attorney's Office has now listed Edwards as a "victim" of Rothstein's crimes. See Statement of Undisputed Facts filed contemporaneously. Epstein's Complaint does not offer any specific reason why a jury would conclude that Edwards was negligent, and he chose not to offer any explanation of his claim at his deposition. Accordingly, Edwards was entitled to summary judgment to the extent the claim against him was somehow dependent upon his negligence in failing to discover Rothstein's Ponzi scheme. 2. Edwards Was Entitled to Summary Judgment to the Extent the Claim Against Him Was Dependent on Allegations Regarding "Pumping the Cases" Because He Was Properly Pursuing the Interests of His Three Clients Who Had Been Sexually Abused by Epstein. Epstein alleges that Edwards somehow improperly enhanced the value of the three civil cases he had filed against Epstein. Edwards represented three young women — E, and Jane Doe — by filing civil suits against Epstein for his sexual abuse of them while they were minors. Epstein purported to find a cause of action for this by alleging that Edwards somehow was involved in "'pumping' these three cases to investors." As just explained, to the extent that Epstein is alleging that Edwards somehow did something related to the Ponzi scheme, those allegations fail for the simple reason that Edwards was not involved in and was entirely ignorant of the existence of any such scheme. Edwards, for 13 EFTA01120545 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages example, could not have possibly "pumped" the cases to investors when he never knew there were any investors and he never participated in any communication with investors. Epstein's "pumping" claims, however, fail for an even more basic reason: Edwards was entitled — indeed ethically obligated as an attorney — to secure the maximum recovery for his clients during the course of his legal representation. As is well known, "[als an advocate, a lawyer zealously asserts the client's position under the rules of the adversary system." Fla. Rules of Prof. Conduct, Preamble. Edwards therefore was required to pursue (unless otherwise instructed by his clients) a maximum recovery against Epstein. Edwards, therefore, cannot be liable for doing something that his ethical duties as an attorney required.2 Another reason that Epstein's claims that Edwards was "pumping" cases for investors fails is that Edwards filed all three cases almost a year before he was hired by RRA or even knew of Scott Rothstein. Epstein makes allegations that the complaints contained sensational allegations for the purposes of luring investors; however, language in the complaints remained virtually unchanged from the first filing in 2008 and from the overwhelming evidence the Court can see for itself that all of the facts alleged by Edwards in the complaints were true. Epstein ultimately paid to settle all three of the cases Edwards filed against him for more money than he paid to settle any of the other claims against him. At Epstein's request, the terms of the settlement were kept confidential. The sum that he paid to settle all these cases is therefore not filed with this pleading and will be provided to the court for in-camera review. 2 In a further effort to harass Edwards, Epstein also filed a bar complaint with the Florida Bar against Edwards. The Florida Bar has dismissed that complaint. See Statement of Undisputed Facts. 14 EFTA01120546 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages Epstein chose to make this payment as the result of a federal court ordered mediation process, which he himself sought (over the objection of Jane Doe, Edwards' client in federal court) in an effort to resolve the case. See Defendant's Motion for Settlement Conference, or in the Alternative, Motion to Direct Parties back to Mediation, Doe v. Epstein, No. 9:08-CV-80893 (S.D. Fla. June 28, 2010) (Marra, J.) (doc. #168) attached hereto as Exhibit "A". Notably, Epstein sought this settlement conference — and ultimately made his payments as a result of that conference - in July 2010, more than seven months after he filed this lawsuit against Edwards. Accordingly, Epstein could not have been the victim of any scheme to "pump" the cases against him, because he never paid to settle the cases until well after the Ponzi scheme had been fully disclosed, and well after Edwards had left RRA and had severed all connection with Scott Rothstein (December 2009). In addition, if Epstein had thought that there was some improper coercion involved in, for example, Jane Doe's case, his remedy was to raise the matter before Federal District Court Judge Kenneth A. Marra who was presiding over the matter. Far from raising any such claim, Epstein simply chose to settle that case. He was therefore barred by the doctrine of res judicata from somehow re-litigating what happened in (for example) the Jane Doe case. "The doctrine of res judicata makes a judgment on the merits conclusive `not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action." AMEC Civil, LLC v. State Dept. of Transp., So.2d , 2010 WL 1542634 at *2 (Fla. 1S1 Dist. Ct. App. 2010) (quoting Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla. 1984). Obviously, any question of improper "pumping" of a 15 EFTA01120547 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAC Second Renewed Motion for Leave to Assert Claim for Punitive Damages particular case could have been resolved in that very case rather than now re-litigated in satellite litigation. 3. Edwards is Entitled to Summary Judgment on the Claim of Abuse of Process Because He Acted Properly Within the Boundaries of the Law in Pursuit of the Legitimate Interests of his Clients. Epstein's Second Amended Complaint raised several claims of "abuse of process." An abuse of process claim requires proof of three elements: "(I) that the defendant made an illegal, improper, or perverted use of process; (2) that the defendant had ulterior motives or purposes in exercising such illegal, improper, or perverted use of process; and (3) that, as a result of such action on the part of the defendant, the plaintiff suffered damage. " S & I Investments v. Payless Flea Market, Inc., 36 So.3d 909, 917 (Fla. 4th Dist. Ct. App. 2010) (internal citation omitted). In fact, this Court is very familiar with this cause of action, as Edwards has correctly stated this cause in his counterclaim against Epstein. Epstein could not prove these elements, a fact effectively conceded by his dismissal of the abuse of process claim on the eve of the Summary Judgment hearing challenging the propriety of that claim. The first element of an abuse of process claim is that a defendant made "an illegal, improper, or perverted use of process." On the surface, Epstein's Complaint appeared to contain several allegations of such improper process. On examination, however, each of these allegations amounted to nothing other than a claim that Epstein was unhappy with some discovery proceeding, motion or argument made by Edwards. This is not the stuff of an abuse of process claim, particularly where Epstein fails to allege that he was required to do something as the result of Edwards' pursuit of the claims against him. See Marty v. Gresh, 501 So.2d 87, 90 16 EFTA01120548 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages (Fla. I ' Dist. Ct. App. 1987) (affirming summary judgment on an abuse of process claim where "appellant's lawsuit caused appellee to do nothing against her will"). In any event, none of the allegations of "improper" process can survive summary judgment scrutiny, because every action Edwards took was entirely proper and reasonably calculated to lead to the successful prosecution of the pending claims against Epstein as detailed in Edwards' Affidavit. Epstein also fails to meet the second element of an abuse of process claim: that Edwards had some sort of ulterior motive. The case law is clear that on an abuse of process claim a "plaintiff must prove that the process was used for an immediate purpose-other than that for which it was designed." S&I Investments v. Payless Flea Market, Inc., 36 So.3d 909, 917 (Fla. 41h Dist. Ct. App. 2010) (citing Biondo v. Powers, 805 So.2d 67, 69 (Fla. zlth Dist. Ct. App. 2002). As a consequence, "[w]here the process was used to accomplish the result for which it was intended, regardless of an incidental or concurrent motive of spite or ulterior purpose, there is no abuse of process." Id. (internal quotation omitted). Here, Edwards has fully denied any improper motive, See Statement of Undisputed Facts, and Epstein has no evidence of any such motivation. Indeed, it is revealing that Epstein chose not to ask even a single question about this subject during the deposition of Edwards. In addition, all of the actions that Epstein complains about were in fact used for the immediate purpose of furthering the lawsuits filed on behalf of M., M., and Jane Doe. In other words, these actions all were both intended to accomplish and, in fact, successfully "accomplished the results for which they were intended" -- whether it was securing additional discovery or presenting a legal issue to the court handling the case or 17 EFTA01120549 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim fur Punitive Damages ultimately maximizing the recovery of damages from Epstein on behalf of his victims. Accordingly, Edwards was entitled to summary judgment on any claim that he abused process for this reason as well—an argument which again was effectively conceded by Epstein's voluntary dismissal. 4. Edwards Was Entitled to Summary Judgment to the Extent Epstein's Claim Was Based On Pursuit of Discovery Concerning Epstein's Friends Because All Such Efforts Were Reasonably Calculated to Lead to Relevant and Admissible Testimony About Epstein's Abuse of Minor Girls. Epstein alleged that Edwards improperly pursued discovery from some of Epstein's close friends. Such discovery, Epstein claims, was improper because Edwards knew that these individuals lacked any discoverable information about the sexual assault cases against Epstein. Here again, Edwards was entitled to summary judgment, as each of the friends of Epstein were reasonably believed to possess discoverable information. The undisputed facts show the following with regard to each of the persons raised in Epstein's complaint: • With regard to Donald Trump, Edwards had sound legal basis for believing Mr. Trump had relevant and discoverable information. See Statement of Undisputed Facts. • With regard to Alan Dershowitz (Harvard Law Professor), Edwards had sound legal basis for believing Mr. Dershowitz had relevant and discoverable information. See Statement of Undisputed Facts. • With regard to former President Bill Clinton, Edwards had sound legal basis for believing former President Clinton had relevant and discoverable information. See Statement of Undisputed Facts. • With regard to former Sony Record executive Tommy Mottola, Edwards was not the attorney that noticed Mr. Mottola's deposition. See Statement of Undisputed Facts. 18 EFTA01120550 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages • With regard to illusionist David Copperfield, Edwards had sound legal basis for believing Mr. Copperfield had relevant and discoverable information. See Statement of Undisputed Facts. • With regard to former New Mexico Governor Bill Richardson, Edwards had sound legal basis for naming Former New Mexico Governor Bill Richardson on his witness list. See Statement of Undisputed Facts. It is worth noting that the standard for discovery is a very liberal one. To notice someone for a deposition, of course, it is not required that the person deposed actually end up producing admissible evidence. Otherwise, every deposition that turned out to be a false alarm would lead to an "abuse of process" claim. Moreover, the rules of discovery themselves provide that a deposition need only be "reasonably calculated to lead to the discovery of admissible evidence." Fla. R. Civ. P. 1.280(6) (emphasis added). Moreover, the discovery that Edwards pursued has to be considered against the backdrop of Epstein's obstructionist tactics. As the Court is aware, in both this case and all other cases filed against him, Epstein asserted his Fifth Amendment privilege rather than answer any substantive questions. Epstein also helped secure attorneys for his other household staff who assisted in the process of recruiting Epstein's minor victims. Those staff members in turn also asserted their Fifth Amendment rights rather than explain what happened behind closed doors in Epstein's mansion in West Palm Beach. See Statement of Undisputed Facts. It is against this backdrop that Edwards followed up on one of the only remaining lines of inquiry open to him: discovery aimed at Epstein's friends who might have been in a position to corroborate the fact that Epstein was sexually abusing young girls. 19 EFTA01120551 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages In the context of the sexual assault cases that Edwards filed against Epstein, any act of sexual abuse had undeniable relevance to the case — even acts of abuse Epstein committed against minor girls other than M., M., or Jane Doe. Both federal and state evidence rules make acts of child abuse against other victims admissible in the plaintiffs case in chief as proof of "modus operandi" or "motive" or "common scheme or plan." See Fed. R. Evid. 415 (evidence of other acts of sexual abuse automatically admissible in a civil case); Ha. Stat. Ann. 90.404(b) (evidence of common scheme admissible); Williams v. State, 110 So.2d 654 (Fla. 1959) (other acts of potential sexual misconduct admissible). A second reason existed to support the propriety of discovery of Epstein's acts of abuse of other minor victims. Juries considering punitive damages issues are plainly entitled to consider "the existence and frequency of similar past conduct." TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 462 n.28 (1993). This is because the Supreme Court recognizes "that a recidivist may be punished more severely than a first offender . . . [because] repeated misconduct is more reprehensible than an individual instance of malfeasance." BMW of North America, Inc. v. Gore, 517 U.S. 559, 577 (1996) (supporting citations omitted). In addition, juries can consider other similar acts evidence as part of the deterrence calculation in awarding punitive damages, because "evidence that a defendant has repeatedly engaged in prohibited conduct while knowing . . . that it was unlawful would provide relevant support for an argument that strong medicine is required to cure the defendant's disrespect for the law." Id. at 576-77. In the cases Edwards filed against Epstein, his clients were entitled to attempt to prove that Epstein "repeatedly engaged in prohibited conduct" — i.e., because he was a predatory 20 EFTA01120552 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages pedophile, he sexually assaulted dozens and dozens of minor girls. The discovery of Epstein's friends who might have had direct or circumstantial evidence of other acts of sexual assault was accordingly entirely proper. Edwards was therefore entitled summary judgment to the extent Epstein's claim was based on efforts by Edwards to obtain discovery of Epstein's friends. This contention also went unchallenged when Epstein dismissed his claims against Edwards. III. EPSTEIN'S LAWSUIT MUST BE DISMISSED BECAUSE OF HIS REFUSAL TO PARTICIPATE IN REASONABLE DISCOVERY. As is readily apparent from the facts of this case, Epstein filed a lawsuit but then refused to allow any real discovery about the merits of his case. Instead, when asked direct questions about whether he had any legitimate claim at all, Epstein hid behind the Fifth Amendment. As a result, under the "sword and shield doctrine" widely recognized in Florida case law, his suit could not have been legitimately prosecuted. "[T]he law is well settled that a plaintiff is not entitled to both his silence and his lawsuit." Boys & Girls Clubs of Marion County, Inc. v. J.A., 22 So.3d 855, 856 (Fla. 5th Dist. Ct. App. 2009) (Griffin, J., concurring specially). Thus, "a person may not seek affirmative relief in a civil action and then invoke the Fifth Amendment to avoid giving discovery, using the fifth amendment as both a `sword and a shield." DePaltna v. DePalma, 538 So.2d 1290, 1290 (Fla. 4th Dist. Ct. App. 1989) (quoting DeLisi v. Bankers Insurance Co., 436 So.2d 1099 (Fla. 4ffi Dist. Ct. App. 1983)). Put another way, "[a] civil litigant's fifth amendment right to avoid self- incrimination may be used as a shield but not a sword. This means that a plaintiff seeking affirmative relief in a civil action may not invoke the Fifth Amendment and refuse to comply 21 EFTA01120553 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages with the defendant's discovery requests, thereby thwarting the defendant's defenses." Rollins Burdick Hunter of New York, Inc. v. Euroclassic Limited, Inc., 502 So. 2d 959 (Fla. 3rd Dist. Court App. 1983). Here, Epstein's suit against Edwards purported to do precisely what the "well settled" law forbids. Specifically, he ostensibly sought to obtain "affirmative relief' — i.e., forcing Edwards to pay money damages — while simultaneously precluding Edwards from obtaining legitimate discovery at the heart of the allegations that formed the basis for the relief Epstein claimed to be seeking. As recounted more fully in the statement of undisputed facts, Epstein - refused to answer such basic questions about his lawsuit as: • "Specifically what are the allegations against you which you contend Mr. Edwards ginned up?" • "Well, which of Mr. Edwards' cases do you contend were fabricated?" • "Is there anything in M.'s Complaint that was filed against you in September of 2008 which you contend to be false?" • "I would like to know whether you ever had any physical contact with the person referred to as Jane Doe in that [federal] complaint?" • "Did you ever have any physical contact with • "What is the actual value that you contend the claim of.. against you has?" The matters addressed in these questions were the central focus of Epstein's claims against Edwards. Epstein's refusal to answer these and literally every other substantive question put to him in discovery deprived Edwards of even a basic understanding of the evidence alleged to support claims against him. Moreover, by not offering any explanation of his allegations, 22 EFTA01120554 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages Epstein deprived Edwards of any opportunity to conduct third party discovery and opportunity to challenge Epstein's allegations. It is the clear law that "the chief purpose of our discovery rules is to assist the truth- finding function of our justice system and to avoid trial by surprise or ambush," Scipio v. State, 928 So.2d 1138 (Fla.2006), and "full and fair discovery is essential to these important goals," McFadden v. State, 15 So.3d 755, 757 (Fla. 4ih Dist. Ct. App. 2009). Accordingly, it is important for the Court to insure "not only compliance with the technical provisions of the discovery rules, but also adherence to the purpose and spirit of those rules in both the criminal and civil context.". McFadden, 15 So.3d at 757. Epstein repeatedly blocked "full and fair discovery," and clearly never intended to provide the discovery that would have been essential to any intended legitimate, good faith prosecution of his claims. IV. EDWARDS IS ENTITLED TO ADVERSE INFERENCES FROM EPSTEIN'S INVOCATION OF THE FIFTH AMENDMENT Epstein's repeated invocations of the Fifth Amendment raise adverse inferences against him that leave no possibility that a reasonable fact finder could ever have reached a verdict in his favor. In ruling on a summary judgment motion, the court was obliged to fulfill a "gatekeeping function" and ask whether "a reasonable trier of fact could possibly" reach a verdict in favor of the plaintiff. Willingham v. City of Orlando, 929 So.2d 43, 48 (Fla. 5th Dist. Ct. App. 2006) (emphasis added). Given all of the inferences that are to be drawn against Epstein, no reasonable finder of fact could conclude that Epstein was somehow the victim of improper civil lawsuits 23 EFTA01120555 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages filed against him. Instead, a reasonable finder of fact could only find that Epstein was a serial molester of children who was being held accountable through legitimate suits brought by Edwards and others on behalf of the minor girls that Epstein victimized. "[I]t is well-settled that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them." Baxter v. Palmigiano, 425 U.S. 308, 318 (1976); accord Vasquez v. State, 777 So.2d 1200, 1203 (Fla. App. 2001). The reason for this rule "is both logical and utilitarian. A party may not trample upon the rights of others and-then escape the consequences by invoking a constitutional privilege — at least not in a civil setting:" Fraser v. Security and Inv. Corp.; 615 So.2d 841, 842 (Fla. 4'h Dist. Ct. App. 1993). And, in the proper circumstances, "'Silence is often evidence of the most persuasive character." Fraser v. Security and Inv. Corp., 615 So.2d 841, 842 (Fla. 4th Dist. Ct. App. 1993) (quoting United States ex rel. Bilokumsky v. Tod, 263 U.S. 149, 153-154 (1923) (Brandeis, J.). In the circumstances of this case, a reasonable finder of fact would have "evidence of the most persuasive character" from Epstein's repeated refusal to answer questions propounded to him. To provide but a few examples, here are questions that Epstein refused to answer and the reasonable inference that a reasonable finder of fact would draw: • Question not answered: "Specifically what are the allegations against you which you contend Mr. Edwards ginned up?" Reasonable inference: No allegations against Epstein were ginned up. • Question not answered: "Well, which of Mr. Edwards' cases do you contend were fabricated?" Reasonable inference: No cases filed by Edwards against Epstein were fabricated. 24 EFTA01120556 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages • Question not answered: "Did sexual assaults ever take place on a private airplane on which you were a passenger?" Reasonable inference: Epstein was on a private airplane while sexual assaults were taking place. • Question not answered: "How many minors have you procured for prostitution?" Reasonable inference: Epstein has procured multiple minors for prostitution. • Question not answered: "Is there anything in M.'s Complaint that was filed against you in Septe f 2008 which you contend to be false?" Reasonable inference: Nothi 's complaint filed in September of 2008 was false — i.e., as alleged in 's complaint, Epstein repeatedly sexually assaulted her while she was a minor and she was entitled to substantial compensatory and punitive damages as a result. • Question not answered: "I would like to know whether you ever had any physical contact with the person referred to as Jane Doe in that [federal] complaint?" Reasonable inference: Epstein had physical contact with minor Jane Doe as alleged in her federal complaint. • Question not answered: "Did you ever have any physical contaciath Reasonable inference: Epstein had physical contact with minor M. as alleged in her complaint. • ir on not answered: "What is the actual val t you contend the claim of against you has?" Reasonable inference: 's claim against Epstein had substantial actual value. Without repeating each and every invocation of the Fifth Amendment that Epstein has made and the reasonable inferences to be drawn from those invocations of privilege, the big picture is unmistakably clear: No reasonable finder of fact could rule in Epstein's favor on his claims against Edwards. Accordingly, Edwards was entitled to summary judgment based on the Fifth Amendment inferences that the jury would draw because Epstein has effectively conceded through invocation of the Fifth Amendment and by his later voluntary dismissal that all allegations against him were both reasonably based and true. 25 EFTA01120557 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages The inferences against Epstein are not limited to those arising from his privilege assertions. Epstein's guilt is also reasonably inferred from his harassment of, intimidation of, efforts to exercise control over, and limitation of access to witnesses who might testify against him. Epstein's efforts to intimidate his victims support the inference that Epstein knew that they were going to provide compelling testimony against him. The evidence that Epstein tampered with witnesses (later designated as his accomplices and co-conspirators) will be admissible to demonstrate his consciousness of guilt. "[l]t is precisely because of the egregious nature of such conduct that the law expressly permits the jury to make adverse inferences from a party's efforts to intimidate witnesses . . . ." Jose' v. Ahmad, 730 So.2d 708, 711 (Fla. 2nd Dist. Ct. App. 1998) (internal quotation omitted). To be clear, Epstein's attempt to tamper with witnesses is "not simply admissible as impeachment evidence of the tampering party's credibility. The opposing party is entitled to introduce facts regarding efforts to intimidate a witness as substantive evidence." Id. at 711 (emphasis in original) (internal citation omitted). This substantive evidence of Epstein's witness intimidation provides yet another reason why no reasonable jury could find in favor of his claims against Edwards. V. EDWARDS WAS ENTITLED TO SUMMARY JUDGMENT ON THE BASIS OF HIS AFFIRMATIVE DEFENSE OF PRIVILEGE Absolute immunity must be afforded any act occurring during course of judicial proceeding, regardless of whether act involves defamatory statement or other tortious behavior, such as tortious interference with business relationship, so long as act has some relationship to 26 EFTA01120558 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages proceeding. See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994). The immunity afforded to statements made during the course of a judicial proceeding extends not only to the parties in a proceeding but to judges, witnesses, and counsel as well. Id. The litigation privilege applies in all causes of action, whether for common- law torts or statutory violations. See Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007). Defamatory statements made by lawyer while interviewing a witness in preparation for and connected to pending litigation are covered by the absolute immunity conferred by the litigation privilege. See DelMonico v. Traynor, 50 So. 3d 4 (Ha. Dist. Ct. App. 4th Dist. 2010), review granted, 47 So. 3d 1287 (Fla. 2010). The privilege extends to statements in judicial proceedings or those "necessarily preliminary thereto. See Stewart v. Sun Sentinel Co., 695 So.2d 360 (Fla. 4th DCA 1997)(an attorney's delivery of a copy of a notice of claim to a reporter, which notice was a required filing prior to instituting suit, was protected by absolute immunity). CONCLUSION The evidence and law described herein provide not only a reasonable basis, but a compelling and unrebutted foundation supporting the conclusion that Epstein never had legitimate grounds to sue Bradley Edwards. Every one of his now dismissed claims was factually baseless and legally barred. 27 EFTA01120559 Edwards adv. Epstein Case No.: 502009CA040800XXXXMBAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages The lack of foundation and legal impediments were so clearly obvious from the time the claims against Edwards were initiated that there could never have been a good faith belief in their propriety. Equally obvious from the surrounding circumstances is the improper motive behind the litigation. If Edwards and his client, M. could be intimidated by the need to defend themselves against the litigation assault of a billionaire opponent, Epstein stood the chance of avoiding or at least limiting his extremely embarrassing and enormously costly civil liability and protecting himself from further criminal prosecution threatened by Edwards' prosecution of an action in Federal Court under the Crime Victims' Rights Act. This calculated effort at extortion is-clearly supportive of punitive damage exposure. Bradley Edwards' Motion to Amend to Assert a Claim for Punitive Damages should be granted. I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve pq - to all Counsel on the attached list, this d 2012. Jack Sc Florid. No.: 169440 Prim. -mail: Se . :ary E-mail(s): S cy Denney Scarola Barnhart & Shipley, P.A. 139 Palm Beach Lakes Boulevard West Palm Beach Florida 33409 Phone: Fax: Attorneys for Bradley J. Edwards 28 EFTA01120560 Edwards adv. Epstein Case No.: 502009CA040800XXXXM BAG Second Renewed Motion for Leave to Assert Claim for Punitive Damages COUNSEL LIST Jack A. Goldberger, Esquire Marc S. Nurik, Esquire Atterbury, Goldberger & Weiss, P.A. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 Phone: Fax: Attorneys for Jeffrey Epstein Bradley J. Edwards, Esquire Fanner, Jaffe, Weissing, Edwards, Fistos & Lehrman, FL 425 North Andrews Avenue, Suite 2 Fort Lauderdale, FL 33301 Phone: Fax: Fred Haddad, Esquire Fred Haddad, P.A. One Financial Plaza, Suite 2612 Fort Lauderdale, FL 33394 Phony Fax: Attorneys for Jeffrey Epstein 29 Law Offices of Marc S. Nurik One E Broward Blvd., Suite 700 Fort Lauderdale, FL 33301 Phone: Fax: Attorneys for Scott Rothstein Lilly Ann Sanchez, Esquire 11. 1 1.1”rn • - 1441 Brickell Avenue, 15th Floor Miami, FL 33131 Phone: Fax: Attorneys for Jeffrey Epstein Tonja Haddad Coleman, Esquire Tonja Haddad, P.A. 315 SE 7th Street, Suite 301 Fort Lauderdale, FL 33301 Phone: Fax: Attorneys for Jeffrey Epstein EFTA01120561