DS9 Document EFTA01166186

1 1 IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA 2 CASE NO. 502009CA040800XXXXMBAG 3 4 JEFFREY EPSTEIN, 5 Plaintiff, 6 -vs- 7 SCOTT ROTHSTEIN, individually, and BRADLEY J. EDWARDS, individually, 8 Defendants. 9 10 11 12 TRANSCRIPT OF HEARING 13 PROCEEDINGS 14 15 DATE TAKEN: Monday, January 27, 2014 TIME: 3:00 p.m. - 4:23 p.m. 16 PLACE: Palm Beach County Courthouse 205 N. Dixie Highway 17 Courtroom 9C West Palm Beach, FL 33401 18 BEFORE: Donald Hafele, Circuit Judge 19 20 21 22 This cause came on to be heard at the time and place 23 aforesaid, when and where the following proceedings were stenographically reported by: 24 Robyn Maxwell, RPR, FPR, CLR 25 Realtime Systems Administrator EFTA01166186 2 1 2 3 4 APPEARANCES: On behalf of the Plaintiff: W. CHESTER BREWER, JR., P.A. 250 South Australian Avenue 5 Suite 1400 West Palm Beach, FL 33401 6 BY: W. CHESTER BREWER, JR., ESQUIRE 7 8 ATTERBURY, GOLDBERGER & WEISS, PA 9 250 South Australian Avenue Suite 1400 10 FL 33401 11 BY: JACK A. GOLDBERGER, ESQUIRE 12 13 TONJA HADDAD, PA 315 SE 7th Street 14 Suite 301 Fort Lauderdale, FL 33301 15 MEMEMMEMOMMill BY: TONJA HADDAD COLEMAN, ESQUIRE 16 17 On behalf of Bradley J. Edwards: 18 SEARCY, DENNEY, SCAROLA, BARNHART & SHIPLEY, P.A. 19 2139 Palm Beach Lakes Boulevard West Palm Beach, FL 33409 20 BY: JACK SCAROLA, ESQUIRE 21 JSX@searcylaw.com BY: WILLIAM B. KING, ESQUIRE 22 Wbk@searcylaw.com 23 24 25 EFTA01166187 3 1 Thereupon, 2 the following proceedings began at 3:00 p.m.: 3 THE COURT: Good afternoon, everybody. 4 Thank you so much. Have a seat. Welcome. 5 MR. BREWER: Good afternoon, Your Honor. 6 THE COURT: I had the opportunity to read 7 the binder and the materials sent to me by 8 respective counsel. I don't think the case should 9 take two hours. 10 MR. BREWER: No. 11 THE COURT: So what I'm going to ask you to 12 do is kindly tailor your arguments to one-half 13 hour apiece. And the movant may split up the time 14 to save some moments for rebuttal. And I think 15 that should more than adequately deal with the 16 matter. 17 I think the United States Supreme Court 18 heard the Brown vs. Board Of Education and gave 19 20 minutes a side. So if that can be done in that 20 amount of time, I think we can take care of this. 21 And, of course, you all realize -- and I 22 don't think this has anything whatsoever to do 23 with the matter, but I should let you know that I 24 handled the state claims that involved Mr. Epstein 25 when I was in Division B. So I have a significant EFTA01166188 4 1 amount of familiarity with the claims that were 2 made. However, until I met with Judge Crow 3 involving this case, I had no knowledge whatsoever 4 that a separate and independent action had been 5 brought by Mr. Epstein against the Rothstein 6 entities and Mr. Edwards. So to that extent, I 7 just to want let you know, as you probably already 8 did already know, that I handled those cases I 9 believe to their conclusion, at or near the time 10 that I left that division two years ago or so. 11 Okay. So are you Ms. Haddad? 12 MS. HADDAD: I am. 13 THE COURT: Will you be arguing on behalf 14 Mr. Epstein? 15 MS. HADDAD: No, Judge. I don't have -- 16 Mr. Brewer will be arguing on our behalf because, 17 as you can hear, I have a cold. 18 THE COURT: All right. 19 Mr. Scarola, did you want to say something? 20 MR. SCAROLA: I did, Your Honor. I just 21 wanted to clarify one matter which I believe to be 22 of some significance. 23 THE COURT: Sure. Of course. 24 MR. SCAROLA: And that is Your Honor 25 referenced a claim against the Rothstein entities EFTA01166189 5 1 and that is not the case. 2 THE COURT: It was just Rothstein 3 individually? 4 MR. SCAROLA: It was just against 5 Mr. Rothstein individually. That claim has never 6 really been defended and -- against Mr. Edwards. 7 And the focus of these motions is only on 8 Mr. Edwards' claims for abuse of process and 9 malicious prosecution. 10 THE COURT: The later I knew. My apologies 11 for misstating the number of defendants involved. 12 MR. SCAROLA: No apology necessary, sir. 13 THE COURT: The only defendants involved 14 and they may have been voluntarily dismissed 15 without prejudice; is that accurate? 16 MR. SCAROLA: There was a voluntary 17 dismissal of the initial claims brought against 18 Mr. Edwards, that's correct, sir, on the eve of 19 summary judgment hearing. 20 THE COURT: I remember that being written 21 in your papers. 22 MR. SCAROLA: Yes, sir. 23 THE COURT: So is Epstein's claim against 24 Rothstein still viable at this juncture? 25 MS. HADDAD: Yes, Your Honor, it is. EFTA01166190 6 1 THE COURT: So the dismissed case without 2 prejudice was to -- was as to Mr. Edwards only. 3 MR. SCAROLA: The claims against LM, one of 4 victims of Mr. Epstein's conduct, those claims are 5 also dismissed. 6 THE COURT: Okay. Thank you for that 7 clarification. I much appreciate it. 8 Mr. Brewer. 9 MR. BREWER: Yes, sir. Well, first of all, 10 Your Honor, I'm Chester Brewer appearing on behalf 11 of Jeffrey Epstein. 12 We have before you today a motion for 13 summary judgment filed on behalf Mr. Epstein with 14 regard to a counterclaim that was filed by 15 Mr. Edwards. The case is currently set before 16 Your Honor, specially set I might say, for a 17 three-week or proposed three-week trial, and it is 18 currently set for May the 6th of this year. 19 One thing that I did want to talk to the 20 Court about before going into the procedural 21 history is in the package that was provided to you 22 by counsel for Mr. Edwards there is a statement or 23 interview that is with a young lady by the name of 24 Now, I don't know whether you 25 have had an opportunity to read it or not. EFTA01166191 7 1 THE COURT: I didn't. I saw the reference 2 to Ms. Roberts. Who is she? 3 MR. BREWER: Ms. Roberts was an alleged 4 victim of Mr. Epstein. There was an interview 5 taken of her by Mr. Scarola and I believe 6 Mr. Edwards. There's a transcript of that 7 interview which is neither sworn to nor even 8 signed. It's something that could not be used for 9 any purpose in the trial of this matter, even for 10 impeachment. So if Your Honor has not read it, I 11 won't go into it. 12 THE COURT: No, I have not read it. I just 13 saw the name bandied about on 14 several different occasions, so that's all I know. 15 And as you can tell, I didn't know her 16 relationship to the case. 17 MR. BREWER: Okay. Your Honor, the 18 procedural history here is there were a number of 19 claims brought by alleged victims of Mr. Epstein. 20 There were a number of different attorneys that 21 were involved. And a number of different cases 22 were filed both in federal court and in state 23 court on behalf of these alleged victims. The 24 cases proceeded, as you've said, some of them were 25 before you. They have all now -- per my EFTA01166192 8 1 information, they have now all concluded although 2 there may still be some investigations. 3 THE COURT: Mr. Edwards at his latest 4 deposition indicated that there's still the 5 victim's case that's going on in the federal 6 court. 7 MR. BREWER: Nothing has happened on that 8 for a quite some period of time now. 9 The -- 10 MR. KING: Judge, if I may, in response to 11 your question. I'm not sure what victim's case 12 that's referencing. All -- all of the cases -- 13 THE COURT: This was a federal statutory -- 14 MR. KING: I -- 15 THE COURT: -- that Mr. Edwards indicates 16 he's doing pro bono on behalf of two of the 17 alleged victims. 18 MR. KING: You're correct. 19 THE COURT: In the Epstein matters. 20 MR. KING: That's correct. Sorry for the 21 interruption. 22 THE COURT: That's okay. 23 MR. BREWER: During the course of those 24 cases, there was some rather unusual discovery 25 that was taking place. And it was learned, and I EFTA01166193 9 1 I'll get into this towards the end of my 2 presentation, but there were a number of things 3 that were learned by Mr. Epstein in and around 4 November of 2009 -- November/December 2009. He 5 filed a lawsuit against Mr. Rothstein, 6 Mr. Edwards, and LM who is one of the alleged 7 victims. One of the counts in that was for 8 malicious -- I believe it's -- he only had abuse 9 of process along with some other counts. 10 In response to that complaint, Mr. Scarola 11 on behalf of Mr. Edwards filed a counterclaim. 12 That counterclaim went through several amendments, 13 but the fourth amended counterclaim speaks to two 14 causes of action; that is abuse of process and 15 malicious prosecution. So those are what we're 16 17 18 19 20 21 22 23 24 25 here to talk about today, is abuse of process and malicious prosecution as it relates to Mr. Epstein's original claim against Mr. Edwards. In response to Mr. Edwards' counterclaim, there were a number of affirmative defenses raised, but one of them that was raised was the litigation privilege. And we are here today to talk with you about the litigation privilege and its current state as espoused by the Florida Supreme Court and the Third District Court Of EFTA01166194 10 1 Appeals and, in fact, the Fourth District Court Of 2 Appeals. 3 THE COURT: One thing I wanted to interrupt 4 you on is this Wolfe case and its current status 5 and the -- I'll call the -- I'll call it the 6 Edwards side to make things be easier. But the 7 Edwards side has raised the issue that apparently 8 this Wolfe case is still in rehearing and 9 therefore of no precedential value to the court. 10 Mr. King, did you want to speak briefly to 11 that? 12 MR. KING: Yeah. We submitted a notice of 13 correction to Judge Sasser the other day who stood 14 in for you on the page extension. 15 THE COURT: Right. 16 MR. KING: We gave her that and asked her 17 to turn that over to you. 18 THE COURT: I didn't get it. 19 MR. KING: Okay. What's actually happened 20 is -- and it's confusing because Westlaw's whole 21 history on this, and Mr. Brewer also understands 22 this because he ran into the same problem. 23 My reading of the history that Westlaw 24 contains indicates that the mandate has issued but 25 they still use the caveat "this is a Westlaw EFTA01166195 11 1 citation only, it's not in the final published 2 format, and therefore it can be changed at any 3 time." But with the issuance of the mandate, that 4 signifies that it is -- the rehearing is denied 5 and it is now final. 6 THE COURT: Okay. Thank you for that. I 7 did not know that until right now. 8 MR. BREWER: So let's get into the Wolfe 9 10 11 12 13 14 15 16 17 18 be protected by the litigation privilege and no 19 action could be taken on them. 20 Over the years different courts looked at 21 it. There was an attempt -- there were attempts 22 made to determine how far and to which causes of 23 action the litigation privilege would apply. 24 The seminal case now for us, I guess, now 25 is Levin. This was Levin, Mabie suing. It was case. That's where we're headed next. And really there's a trilogy of cases. There's the Levin case, the Echevarria case, if I'm somewhere close to pronouncing that correctly, and the Wolfe case. All of them deal with litigation privilege which dates back to 1917. And I think that we are all most familiar with the standard that defamation cases, if the, quote, alleged defamation occurred during the course of a judicial proceeding would EFTA01166196 12 1 actually a tortious interference case. But the 2 case went up to the Florida Supreme Court. And 3 the issue before them was how far is this 4 privilege or to what causes of action should this 5 privilege apply? 6 And the Levin court came out and said that 7 it would apply to all torts, including the one 8 that was before them which was tortious 9 interference. And that the standard for 10 determining whether the action complained of would 11 be whether that action had some relation to the 12 proceeding, the judicial preceding. 13 Later on the question came up, Well, should 14 that -- it's the -- we've already determined that 15 it applies to all torts. And so, does it also 16 apply to statutory violations or cases involving 17 statutory violations? And that's the Echevarria 18 case, also in front of the Florida Supreme Court, 19 some 13 or 14 years after Levin, and they found, 20 yes, that it does apply to, essentially, all civil 21 judicial proceedings. 22 Now, the issues before us are the 23 litigation privilege as it applies to abuse of 24 process and malicious prosecution. That was all 25 brought to a head in the Wolfe case. In the Wolfe EFTA01166197 13 1 case, the Third District Court Of Appeal was faced 2 with the issue of do the -- does the litigation 3 privilege apply in those two causes of action. 4 The answer was yes. The Wolfe case or the 5 Wolfe court went back and essentially referred 6 back to and analyzed the Levin and Echevarria 7 cases. And that's why I say it's kind of a 8 trilogy. 9 And in the Wolfe case it was determined 10 that this was not -- not only was it privileged 11 for any actions that were related to the judicial 12 process, it was an absolute privilege. 13 Now, in our case, we have exactly the same 14 issue. We've got a complaint that was filed that 15 is alleged in the counterclaim to be malicious 16 prosecution. We also have the pleadings, 17 everything that was filed after the initiation of 18 the judicial pleading -- judicial process. It's 19 claimed to be an abuse of process. 20 In fact, in answers to interrogatories and 21 all of the discovery that has been had from the 22 Edwards side, they have said that the filing of 23 the complaint was in itself it was untrue, the 24 information that was there was untrue; Epstein 25 should have known it was untrue, and that he had a EFTA01166198 14 1 bad purpose in filing which was to intimidate or 2 extort Mr. Edwards and his client. 3 That's been put to bed in the Wolfe case 4 because the litigation privilege absolutely 5 applies and is absolute. The Wolfe case states 6 that they could think -- or the Wolfe court stated 7 they could think of no action that would be more 8 related to the judicial process than the filing of 9 a complaint. So a complaint, the filing of the 10 complaint is privileged. 11 Then going back, and then as they related 12 to the Levin case and the Echevarria case, they 13 said anything that was related to the judicial 14 process -- discovery, depositions, 15 interrogatories -- as long as they were related, 16 they were protected by -- the participants were 17 protected by the litigation privilege. 18 They -- in the trilogy, and I forget which 19 one of the cases it was, but they go even further 20 and clarify that the claim "a bad motive" is 21 really irrelevant to these causes of action when 22 you were talking about the litigation privilege. 23 The -- let me see, where am I here? 24 In the Wolfe case it was a motion for 25 judgment on the pleadings. In some of these other EFTA01166199 15 1 cases it was motion for summary judgment. And in 2 all of these cases they found that the litigation 3 privilege barred the causes of action that were 4 being claimed. 5 The argument has been made by the other 6 sides that because Mr. Edwards -- or, excuse me, 7 because Mr. Epstein had no reason to file the 8 original complaint that he filed, that somehow or 9 another the litigation privilege should not apply. 10 And that because he shouldn't have filed the 11 original complaint, everything that he did 12 thereafter was an abuse of process. 13 We would put it to Your Honor that's not 14 15 16 17 18 19 20 21 22 23 24 25 the standard as espoused by the Third District Court Of Appeal, the Fourth District Court Of Appeal, or the Florida Supreme Court. The standard is: Did the action have some relation to the judicial proceeding? THE COURT: I think at least in trying to distinguish Wolfe, but at the same time taking a more global approach, the Edwards' side is suggesting that timing and the length of time subsequent to the settlement of the pending claims and his continuing to prosecute the suit more so on the malicious prosecution side would distance EFTA01166200 16 1 itself from Wolfe, because in Wolfe I believe the 2 court made clear that it was a brief prosecution 3 of the action and was not protracted. How do you 4 respond to that concern? 5 MR. BREWER: I respond by quoting the 6 Florida Supreme Court, which is: If the action -- 7 and whether they're talking one action, 20 actions 8 or 40 actions, if the action is related to the 9 judicial preceding, then you have a litigation 10 privilege. 11 THE COURT: And that can go on essentially 12 forever in your mind? 13 MR. BREWER: I don't know that it can go on 14 forever because also they were talking, 15 particularly in the Levin case, about protections 16 that would be afforded to litigants. But those 17 protections would not be through a cause of action 18 for malicious prosecution or abuse of process; 19 rather, it would be through the court with 20 contempt proceedings, perhaps. It would be 21 through the Florida Bar for, you know, 22 inappropriate actions taken by an attorney. It 23 could be perjury for a litigant which would be 24 handled by the state. 25 THE COURT: I don't think perjury. Not if EFTA01166201 17 1 it's guised in the litigation privilege, but 2 perhaps you're right that it could be met with 3 57.105 standards. 4 MR. BREWER: 57.105 was the one I was just 5 getting ready to get to, Your Honor. So there are 6 protections against what you're talking about, but 7 again, I have to go back to what did the Supreme 8 Court tell us. 9 I did want to touch also on another point 10 that was raised in our motion, which is that the 11 Complaint, at least insofar as malicious 12 prosecution, has to fail because there is probable 13 cause demonstrated for Mr. Epstein to have filed 14 or at least have reason to believe that he could 15 file -- properly file the claim that he -- that he 16 did file. 17 THE COURT: Is probable cause always a 18 legal -- purely legal determination? 19 MR. BREWER: No. No. If there are 20 21 22 23 24 25 questions of fact that are involved with the probable cause, the questions of fact are for the determination of the jury. The jury -- the judge then takes those determinations of the jury to make a finding of probable cause. But it is in the -- at the end of the day the court -- the EFTA01166202 18 1 issue of probable cause is a matter of law for 2 determination by the court. 3 But the threshold for establishing probable 4 cause in a civil action is really rather low. 5 Because it is whether the defendant could have 6 reasonable -- what the -- what the defendant could 7 have reasonably believed at the time of asserting 8 the claim. 9 So I want to go briefly through what 10 Mr. Epstein knew or was available to him at the 11 time November/December of 2009. 12 First, undisputed, Mr. Edwards was a 13 partner at the Rothstein firm. It's also 14 undisputed and it had been admitted by 15 Mr. Rothstein that this firm was the front for one 16 of the largest Ponzi schemes in Florida history. 17 At the time, Mr. Edwards was the lead attorney for 18 three cases that were being brought by the 19 Rothstein firm against Mr. Epstein. 20 During the litigation there were numerous 21 discovery attempts which appeared to be unrelated 22 to those; and that was trying to get flight 23 manifests, take depositions of people who may have 24 been on flights on Mr. Epstein's planes, some 25 very, very prominent names. And these things were EFTA01166203 19 1 escalating during that time period. And it was 2 very, very strange. 3 In late November of 2009 there was an 4 explanation as to why those things were going on. 5 And the Rothstein firm imploded. And there was a 6 complaint that was brought by Bill Scherer I 7 believe down -- I don't know if it was Broward 8 County or Dade County. 9 THE COURT: Yeah, I'm familiar with all 10 that. 11 I remember that day. Do you remember that 12 day, Mr. Edwards? 13 MR. EDWARDS: I remember it like yesterday. 14 MR. BREWER: In any event, he filed a 15 complaint on behalf of a group of investors that 16 we refer to as Razorback. And if I can find it. 17 Here we go. One of allegations in the complaint 18 in Razorback was, additionally, "Rothstein used 19 RRA's representation in the Epstein case to pursue 20 issues and evidence unrelated to the underlying 21 litigation but which was potentially beneficial to 22 lure investors into the Ponzi scheme." 23 THE COURT: You -- five out of the six of 24 you know me very well, and I always am very 25 receptive to argument. You guys know that. The EFTA01166204 20 1 only one is Ms. Haddad. I think -- I'm not sure 2 if we met before. But I just feel like the 3 probable cause aspect just carries with it too 4 many factual issues for me to rule as a matter of 5 law, so I don't think that I can grant relief on 6 the probable cause issue vel non. So if you will, 7 please move on to 8 MR. BREWER: On that note, because I was 9 I will close. 10 THE COURT: Okay. Thank you very much, 11 Mr. Brewer. 12 MR. BREWER: No, I will close by -- 13 THE COURT: On that issue? 14 MR. BREWER: I will close on that issue. 15 THE COURT: Very well. 16 MR. BREWER: But I would like to close by 17 quoting a very prominent attorney. 18 THE COURT: Sounds like a plan. 19 MR. BREWER: This is something that was 20 before Judge Crow. 21 And it begins out of the attorney saying, 22 "Tab 4, Levin vs. Middle -- Levin vs. Middlebrook 23 is the Tab No. 18?" 24 Judge Crow says, "I read it a thousand 25 times." EFTA01166205 21 1 The attorneys says, "Yes, sir, I'm sure you 2 have." 3 "THE COURT: You have to give it to me 4 again, though." 5 ATTORNEY: "I will be happy to do that." 6 "THE COURT: This deals with the litigation 7 privilege?" 8 The attorney then goes on to say, "Yes, 9 sir, it does deal with litigation privilege. 10 Echevarria also deals with the litigation 11 privilege. Delmonico stands for the proposition 12 that the issues with regard to privilege are some 13 issues of law for the court to determine. And I 14 provided Your Honor with highlighted copies. I'm 15 providing opposing counsel with highlighted copies 16 as well. 17 "THE COURT: Okay." 18 THE ATTORNEY: "Basic point here, Your 19 Honor, is that the litigation privilege is an 20 21 22 23 24 25 absolute privilege. Once it is established that the actions occur within the course and scope of the litigation, the privilege applies absolutely as a matter of public policy. "The basis of those decisions, that if there's misconduct in the course of litigation -- EFTA01166206 22 1 if you're talking about improper discovery, if 2 you're filing improper motions -- there are 3 remedies that are available to the court through 4 the court's inherent power to control its own 5 litigation; through the contempt powers of the 6 court through Florida Statute 57.105, and through 7 the filing of bar grievances. And it will cripple 8 the system if litigants are obligated to respond 9 to separate litigation just because somebody has 10 alleged you noticed the deposition that shouldn't 11 have been noticed. You filed a motion that 12 shouldn't have been filed." 13 That prominent attorney is Mr. Scarola. 14 THE COURT: In an unrelated case? 15 MR. BREWER: In this case. In this case 16 when they were arguing that Mr. Edwards was 17 entitled to the litigation privilege with regard 18 19 20 21 22 23 24 and 25 is seated with us at the table. to Mr. Epstein's complaint. THE COURT: Okay. Who -- Off the record for a minute. (Discussion off the record.) THE COURT: Okay. Mr. King, please. MR. KING: Thank, Your Honor. William King Jack Scarola, Your Honor, for Mr. Edwards who EFTA01166207 23 1 May it please the Court. 2 THE COURT: Please. 3 MR. KING: In light of the Court's ruling 4 on the probable cause issue, I am not going to get 5 into all of the facts with which we did not have 6 an opportunity to identify in detail. I'll simply 7 say to the Court that there still exists the issue 8 of the bona fide determination they have not 9 raised here today. And so, the submission of the 10 facts that we have submitted, that we've prepared 11 for you, would bear on that unless they have -- 12 likewise, because of factual disputes, they're 13 basically taking the position that is no longer -- 14 that's no longer an issue either for purposes of 15 this summary judgment. 16 Pursuant -- 17 THE COURT: Let me stop you, Mr. King, so 18 that you're not confused by my preliminary 19 statements to Mr. Brewer. And that is, that the 20 global issue that's covered by, as Mr. Brewer puts 21 it, the trilogy of cases, the Levin, Echevarria, 22 and now this Wolfe case is not being disposed of 23 or is not being ceded by Mr. Brewer here. They're 24 still claiming that both counts are covered by the 25 Wolfe, Levin, and Echevarria cases. EFTA01166208 24 1 My statement is only if, in fact, those 2 cases are, and now the Wolfe case which is now, in 3 my view, on point relative to both abuse of 4 process and malicious prosecution claims globally, 5 if that case for some reason doesn't cover that, 6 then the elements of the malicious prosecution 7 claim are off the table. In other words, I would 8 not grant the motion because of at least those two 9 reasons; that is that I believe that there are 10 questions of fact related to the probable cause 11 issue, as well as the bona fide determination 12 issue additionally. 13 MR. KING: And I understand the Court's 14 ruling in that regard. 15 THE COURT: Okay. 16 MR. KING: My only point was they raised in 17 their initial brief an issue of whether there was 18 a bona fide termination. That, likewise, is very 19 fact specific. 20 THE COURT: I agree and that's why I want 21 to make clear that that standing alone, the 22 elements of the malicious prosecution claim as 23 opposed to the abuse of process claim, which I 24 will handle separately, will not muster in summary 25 judgment in my view. EFTA01166209 25 1 MR. KING: Thank you. 2 Then let me focus, then, on the litigation 3 privilege, Judge, since that's the key issue that 4 the Court is dealing with today. 5 THE COURT: Thank you. 6 MR. KING: It is our position that a 7 conflict currently exists with regards to the 8 issue whether the litigation privilege bars a 9 malicious prosecution claim. And I have cited to 10 the case Olson vs. Johnson, 961 So2d. 356, the 11 Second DCA's opinion in 2007, after both Levin and 12 Echevarria. And it holds that malicious 13 prosecution claims are not barred by the 14 litigation privilege. 15 Then you have Wolfe that stands in 16 contradistinction to that which holds that it 17 does. Although, as I'll point out in a few 18 moments, one of -- Judge Shepherd in his 19 concurring opinion doesn't -- he doesn't rely on 20 that, on that theory. 21 Our position is that Olson vs. Johnson sets 22 forth the accurate and more persuasive 23 proposition; that is that it does not bar a 24 malicious prosecution claim. Even though Olson 25 vs. Johnson dealt with complaints by a complaining EFTA01166210 26 1 witness in a case that only resulted in a 2 malicious prosecution claim leading to a wrongful 3 arrest, doesn't -- the facts of the case itself do 4 what happens 5 the 6 unequivocal; 7 not apply to 8 9 10 which I submit in all of the cases that have been 11 cited by everyone, Judge Sasser's opinion is the 12 most cogent, most well-reasoned, and rejects those 13 very propositions that two judges in the Wolfe 14 case adopt. 15 So let me -- let me just suggest to the 16 Court -- 17 THE COURT: Which Judge Sasser? I'm trying 18 to figure out which one you are talking about. 19 MR. KING: That is the decision in -- bear 20 with me, Judge. 21 THE COURT: No problem. 22 MR. KING: That is the decision in Johnson 23 vs. Libow, a 2012 -- Westlaw 4068409 in 2012. 24 THE COURT: Okay. 25 MR. KING: It is concise. It's to the not go so far as to address issues of once a civil complaint is filed. But proposition that that Olson states is that is the litigation privilege does malicious prosecution. Now, when we get to Judge Sasser's opinion, EFTA01166211 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 point. And I'll address that in just a few moments. THE COURT: All right. Thanks. MR. KING: Now, what's interesting about Wolfe, and what's almost inexplicable about Wolfe, is that it ignores its own prior precedent by Judge Cope in his concurring decision in Boca Investors Group vs. Potash, 835 So2d. 273. THE COURT: That was a concurring opinion? MR. KING: Yes, that was his concurring opinion. THE COURT: Okay. MR. KING: Of course, as you know, Judge Cope is very well-respected and his opinions are very articulate, but Third DCA's full panel's Servcies Inc. vs. Henry, it also ignores a decision in SCI Funeral 839 So2d. 702 at Note 4, Third DCA opinion in 2000, both of which both Judge Cope and the panel in the SCI case note that the Supreme Court's citation in Levin to Wright vs. Yurko, which I cited in the memorandum, which was a Fifth DCA decision back in 1984, implicitly recognizes implicitly claims are -- that is the Supreme Court itself recognizes that malicious prosecution not subject to the litigation EFTA01166212 28 1 privilege. 2 And if you read Wright vs. Yurko, you read 3 Judge Cope's concurring opinion, and you read the 4 panel's footnote in SCI, one should not come up 5 with any other conclusion other than that's what 6 the Supreme Court did. So you have Wolfe standing 7 in contradistinction to its own -- to its own 8 precedent, which they don't address at all in 9 Wolfe, and it stands importantly in 10 contradistinction to the Supreme Court's own 11 position on that -- on that doctrine. 12 I -- I would dare say that the Third 13 District will always stand alone on that 14 proposition. Any other district court which is 15 going to undertake this issue will not follow that 16 ruling. And the Supreme Court itself, if it ever 17 gets on the cert's jurisdiction, will not either. 18 Other courts have likewise commented that 19 20 21 22 23 24 25 the litigation privilege would not bar a malicious prosecution claim. I have cited you to the decision of Judge Corrigan in North Star Capital Acquisition, LLC vs. Krig, 611 F.Supp.2d 1324 (M.D. Fla. 2009), another decision that was decided after Levin and Echevarria. And the court in that case discussed -- let me just for a moment EFTA01166213 29 1 here -- 2 Well, the bottom line is Judge Corrigan 3 commented about the litigation privilege and 4 stated that neither malicious prosecution nor 5 abuse of process would be barred by the litigation 6 privilege. 7 I have also cited the Cruz vs. Angelides, 8 the Middle District of -- I'm sorry, 9 574 So2d. 278, Second DCA 1991, which also 10 suggests that malicious prosecution would not be 11 barred by the litigation privilege. 12 But as I've indicated, the most cogent and 13 well articulated opinion on this subject is 14 Judge Sasser's opinion in Johnson vs. Libow. She 15 16 17 18 19 20 21 22 23 24 25 expressly revoked the arguments that are raised by Wolfe, which arguments, of course, are opposed by the assertion in Olson. The court noted the following -- and these are the very compelling reasons why Wolfe would not apply to a malicious prosecution claim. As she said, "Levin involved actions taken during the course of proceedings" and as you remember what Levin was; that was a situation where there was a motion to disqualify counsel. Then ultimately, when they didn't call counsel, EFTA01166214 30 1 they filed a separate interference claim and the 2 court barred that on the litigation privilege. 3 But the court stated that when you're dealing with 4 the malicious prosecution lawsuit, it's 5 fundamentally different. It involves the filing 6 of a baseless action against a defendant. And the 7 purpose of a malicious prosecution action is to 8 prevent vexatious prosecution or litigation. 9 "The purpose of the litigation privilege," 10 she stated expressly, "is not to preclude the tort 11 of malicious prosecution. And if the litigation 12 privilege was applicable to the filing of a suit, 13 the tort of malicious prosecution would not 14 survive." 15 And as the Court is well aware, the 16 malicious prosecution has been recognized as -- 17 it's an ancient tort in Florida. It's always been 18 19 20 21 22 23 24 25 around. The Supreme Court has addressed it in the past specifically. And one cannot lightly accept the proposition that the Supreme Court, which itself has indicated -- implicitly indicated at least that the litigation privilege would not bar a malicious prosecution claim. That the Supreme Court itself would not adhere to the those rulings and overturn a century of law recognizing the tort EFTA01166215 31 1 of malicious prosecution. 2 We also submit that Wolfe is 3 distinguishable because the litigation privilege 4 was applied to the attorneys in that case. The 5 attorneys were involved, and I need not go over 6 all of the facts of the case, but it was a very, 7 very brief involvement by the lawyers. As I 8 suggested in the brief, lawyers may end up being 9 given a broader immunity under the litigation 10 privilege because of their obligations to their 11 clients to carry out their legal and ethical 12 responsibilities. 13 And the facts of that case are somewhat 14 compelling in that the attorneys who make a brief 15 appearance shouldn't be exposed to all of this. 16 Maybe their -- maybe the thought process was 17 something along the lines, well, we don't want to 18 put the attorneys through this. This should be 19 cut out right at the beginning. 20 THE COURT: Off the record for one second. 21 MR. KING: Yes. 22 (Discussion off the record.) 23 MR. KING: And I cited the Taylor case, 24 which was a Supreme Court of Idaho decision, which 25 discusses that issue and which shows that for EFTA01166216 32 1 those very reasons that I identified, lawyers 2 should have a greater opportunity to -- 3 opportunity to seize upon immunity which would cut 4 off their liability early on. So whether it's a 5 qualified immunity or absolute immunity discussed 6 in that decision, whatever, perhaps that was 7 the -- a factor or although they don't cite to 8 Taylor, but maybe that's a factor in Wolfe. 9 THE COURT: I guess I understand your 10 position that you're taking in terms of in the 11 Wolfe context, because as I indicated to 12 Mr. Brewer during his argument, the court made it 13 a point to indicate the very brief involvement of 14 the Kenny Knachwalter firm. But since I did ask 15 my question off the record, I'll indicate what I 16 did ask was whether or not Mr. Epstein was 17 represented at all times material to the 18 allegations now made by Mr. Edwards. And Mr. King 19 has answered in the affirmative. 20 I'm having difficulty then with trying to 21 reconcile why the claim was only brought against 22 Mr. Epstein as opposed to his attorneys, 23 especially where the emphasis has been made quite 24 strongly that despite the settlements that went on 25 Epstein, essentially himself as related to the EFTA01166217 33 1 court, was the guiding influence here in 2 proceeding against Mr. Edwards in a -- for a 3 for a time period that you believe is actionable. 4 MR. KING: Well, one response, without 5 going into the entire tortured history of 6 Mr. Epstein's actions and the various machinations 7 that he undertook, the initial complaint which 8 charged Mr. Edwards with all sorts of horrific 9 crimes -- fraud, perjury, conspiracy to commit 10 perjury, securities fraud, general fraud, 11 extorsion, all -- all specific crimes that were 12 alleged against him, the lawyers who were involved 13 in that case withdrew. They abandoned those 14 claims. 15 Well, we can't ask them why, but I submit 16 that what happens is the evolution of that case 17 then becomes a case involving merely -- I 18 shouldn't say merely abuse of process, abuse of 19 process. So one response is that's a situation 20 that -- that you -- that is sort of suggested by, 21 perhaps, the court in Wolfe and in desiring to 22 protecting lawyers who recognize what happened and 23 then get out of the case. 24 They realize that whatever they were told 25 by their client, and we submit that, for example, EFTA01166218 34 1 the attorneys would not necessarily know what 2 Mr. Epstein had in his mind. We know what Epstein 3 had in his mind because I have outlined somewhat 4 in the papers here the huge amount of evidence 5 accumulated by not only Mr. Edwards but the 6 federal government, by the state government which 7 showed that not only was -- did he abuse 8 Mr. Edwards' clients repeatedly from the time they 9 were 14 and 15 years old, he was abusing girls as 10 young as 12 years old. He was having -- he was 11 having orgies on his airplane, one of those 12 indications that they may have had reference to in 13 their papers and earlier made reference here about 14 why was discovery pursued by Mr. Edwards. 15 But they -- the lawyers are just not -- A, 16 they're not sued. That's not a situation that 17 we're facing here. 18 THE COURT: I know that. 19 MR. KING: And for the very reasons that 20 Taylor talks about, it's just unwise, it seems to 21 me, to pursue lawyers in a case where you may know 22 inside what's going on with Epstein and why he's 23 doing what he's doing. 24 And that's a fine line that the lawyers 25 have to face in every case; when do I step out? EFTA01166219 35 1 The original lawyers in this case did step out. 2 And those claims were all abandoned. And I think 3 that speaks volumes. All of that, of course, goes 4 in part to the issues of malicious prosecution, 5 which we would ultimately argue if I had to get 6 into those facts. 7 I hope that answers your question. I mean, 8 Epstein stands in our -- from our standpoint, in a 9 completely different position than the lawyers at 10 this stage of the proceedings despite the fact 11 that after he settles the claims he then continues 12 to pursue the allegations. 13 And to us, your review of the size of those 14 settlements would have an impact on all of the 15 issues, not on this particular issue that we're 16 talking about now. But if we had to get into 17 those facts and the court took a look at what 18 those settlements were in camera, then we would 19 believe that that would be -- that's a strong 20 indication that all of this stuff that he seized 21 upon, that Edwards seized upon 22 MR. BREWER: Excuse me, Your Honor. Motion 23 For Summary Judgment is supposed to be something 24 that is in evidence and in record and it's not. 25 THE COURT: Yeah, I have no plans on EFTA01166220 36 1 reviewing the size of the settlement amounts. 2 They don't phase me at all. And I -- I don't -- 3 it seems since they agreed to be confidential, I 4 think we should respect that. 5 MR. KING: And I understand, and since 6 we're not even discussing these, and I may be 7 going further than what your concerns were about 8 the lawyer's involvement in the case and why they 9 wouldn't be sued in a case like this. 10 THE COURT: What I'm saying is I can 11 understand both sides' argument. But on the one 12 hand, it's interesting that the line of cases here 13 on this immunity issue often bears on the facts of 14 the cases. Meaning, the most repugnant they 15 take -- there's a more liberal approach. The 16 Wolfe case where the Kenny Knachwalter firm 17 abandoned the claims immediately, there's a more 18 conservative approach. And I tend to -- tended -- 19 tended to notice that while I was reviewing the 20 cases, which is understandable, certainly. 21 But the -- the -- what I said about both 22 sides is, yes, I can see in a situation where the 23 attorneys quickly abandoned the case there's the 24 indication that a claim would not lie. However, 25 where I -- where I have the representation made EFTA01166221 37 1 without controvert that Epstein was represented 2 throughout the process, so to speak, even after 3 the settlements were effectuated, but represented 4 nonetheless by counsel, I can also see the other 5 side where it could -- it could weaken the 6 argument that Epstein would be at the control so 7 to speak. 8 MR. KING: Well, it -- it's our position 9 that the mass of evidence which we have, some of 10 which I just outlined, reflects that Mr. Epstein 11 seized upon a convenient situation, the RRA 12 implosion, to use that as a sword against 13 Mr. Edwards. And it became -- it was personal 14 with him, and he knew that the allegations against 15 him by not only his own clients were true. And as 16 you know, ultimately, what happens is the 17 attorneys dismiss the case on the eve of the 18 Motion For Summary Judgment. And 19 Mr. Scarola corrects me. I wasn't in in 20 those the earlier stage, but he indicates that two 21 sets of lawyers got out. 22 THE COURT: That's okay. That's fine. 23 MR. KING: But in any event, then on the 24 eve of the summary judgment motion we submit that 25 the last set of lawyers gets out because -- they EFTA01166222 38 1 withdraw those claims or dismiss those claims 2 because they are faced with the knowledge that 3 they couldn't uncover one iota of evidence that 4 Mr. Edwards was guilty of anything. His name 5 never appeared in the public, in any public 6 documents were filed. They took his deposition 7 for days. They have never been able to uncover 8 one piece of evidence that would remotely suggest 9 that he was involved. So the bottom line is -- I 10 really probably have gone further than the 11 Court -- 12 THE COURT: No, not at all. 13 MR. KING: and I apologize for that. 14 THE COURT: I just want to give you a 15 ten-minute warning now, but -- 16 MR. KING: All right. 17 THE COURT: Don't these cases, though, 18 teach us that essentially no matter how repugnant 19 the judicial conduct process -- the conduct during 20 the judicial proceedings, I should say, no matter 21 how far repugnant the conduct during the judicial 22 proceedings may be, as long as they are within the 23 judicial proceeding there is this immunity that 24 exists, particularly for an abuse of process 25 claim? EFTA01166223 39 1 The malicious prosecution claim I am more 2 on the fence. But on, as far as the abuse of 3 process claim is concerned, and there's that 4 balancing that is taken into account that I 5 believe it's talked about primarily in the Levin 6 case about the full disclosure within the lawsuit 7 venue versus someone facing liability because of 8 what may be alleged in a complaint or during a 9 deposition or something along those lines. As 10 long as it's within the judicial proceeding, and, 11 again, no matter how repugnant it may be, is there 12 not this immunity afforded by the appellate courts 13 that would extend at least to the abuse of process 14 claim? And tell me, if not, why not, please. 15 MR. KING: We acknowledged in the memo that 16 both in the Third and the Fourth -- in the Fourth 17 in the American National Title Case, both applied 18 the doctrine to the abuse of process claim. 19 The full import of how far that will go 20 because each of those cases again involved 21 lawyers. But the question is: Will that in the 22 future -- because, again, that tort, abuse of 23 process, has been around a long time. But the 24 American National case was 1999. And also the 25 LatAm case, which was a precursor to Wolfe on that EFTA01166224 40 1 issue, the litigation privilege and the abuse as 2 it applied to the abuse of process, that case was 3 cited by Wolfe. 4 So you had -- you had some rational prongs 5 that Wolfe could latch onto in terms of the issue 6 of the application of litigation privilege to 7 abuse of process. And we would distinguish it 8 on -- we would distinguish those cases based on 9 the fact that lawyers only were involved. 10 We would also maintain that that -- 11 THE COURT: I guess, Mr. King, what it 12 comes down to is, shouldn't lawyers know better 13 than the litigants themselves? And, again, if -- 14 I would be a bit more receptive to your argument 15 if I was told Epstein filed these documents 16 pro se. Because he is at least, you know, to a 17 degree an educated individual. He has a 18 background, I believe, in finance. So, you know, 19 there could be those facts that could be developed 20 within his educational purview, within his 21 experience purview, within his own personal 22 vendettas that he may have with Mr. Edwards. 23 But, again, shouldn't lawyers know better? 24 The lawyers are continuing this plight on behalf 25 their client. Why is Epstein the one who is the EFTA01166225 41 1 2 3 4 5 6 7 focal point of this abuse of process claim? MR. KING: And, again, I would go back to the role that lawyers have in walking that ethical line, walking that legal line, walking the line where they have to advance their client's cause as best they can. And when it comes to that point where they recognize that, no, these claims 8 are false, there's no basis for us to proceed, 9 then they get out. 10 And now, as I'm advised, two firms did that 11 before. The last firm came in and dropped 12 their -- dropped those claims on the eve of 13 summary judgment. 14 So one, to me, as -- I shouldn't say that 15 To -- to Mr. Edwards in this particular case we 16 see a clear distinction. And that distinction is 17 you don't go after the lawyers for these claims if 18 you recognize that there is a -- that they have 19 acted within the bounds of arguably of their 20 ethical responsibilities and legal 21 responsibilities to their client. They have to 22 zealously advocate for him. But that doesn't 23 excuse him. That doesn't excuse an individual who 24 over all those years were committing those heinous 25 acts against not only Mr. Edwards' clients, but EFTA01166226 el 2 1 many, many others. 2 THE COURT: But those heinous acts as have 3 you communicated, and I won't take a position one 4 way or the other on the acts, but I'm just picking 5 up on what you just said, but they have nothing to 6 do with this case itself on the claims of abuse of 7 process and malicious prosecution. They just 8 simply don't. I mean, you may suggest to me that 9 they have something to do with them from the 10 standpoint of Epstein's dissatisfaction with the 11 settlement or whatever may have been attributed to 12 that, but they really have nothing to do with 13 these claims. 14 MR. KING: Well, with the litigation 15 privilege I will acknowledge other than what I 16 have already argued the situation was different 17 wherein, in, for example, Wolfe he had the brief 18 appearance by the lawyer and Judge, it was 19 Judge Shepherd, in his concurring opinion, didn't 20 embrace that. What he said was, Look, there's two 21 elements, and malicious prosecution doesn't even 22 exist here. Let's get rid of it. 23 THE COURT: Right. 24 MR. KING: I would just suggest that the 25 facts that I have outlined, and which we have in EFTA01166227 43 1 all of the materials that we submitted to you, all 2 of those facts are -- they -- they do go to the 3 other issues that you aren't addressing here; the 4 factual issues on good faith and the factual 5 issues on bona fide termination. 6 And so with that reservation, I would 7 8 9 10 11 12 13 14 15 16 17 18 all of these facts might impact. 19 THE COURT: No. Go right ahead. 20 MR. KING: And those facts impact because 21 what it does is it cries out and it shows you that 22 this is why a malicious prosecution claim should 23 survive the litigation privilege. When you have a 24 torrent of evidence that he's comitted these acts 25 and that he knows that the attorney for those suggest that the only other reason why these facts are so significant is because anybody sitting -- a court sitting back and looking at the landscape here would have to ask themselves, look, in light of -- for example, Judge Sasser's opinion, and the reasons why we have malicious prosecution claims and why they would survive is because of something just like this. And I'm getting back to the litigation privilege and malicious prosecution. I really have ended my comments on that but I just wanted to address your concerns about why EFTA01166228 44 1 clients has acted appropriately and at every stage 2 he was 3 before 4 and he 5 6 7 8 9 10 11 12 13 prosecution of a claim is something that the law 14 will recognize. 15 And everything that we have put into the 16 record about Epstein's involvement shows that this 17 use of that lawsuit was a pretext. And that he 18 had every evil motive in the world to pursue these 19 claims and continue those claims after Mr. Edwards 20 settled those claims -- Mr. Epstein settled those 21 claims. 22 So my only other comments is to try to 23 address your concerns vis-a-vis the issue of abuse 24 of process. That's more difficult. It's more 25 difficult because we have the Fourth's opinion and involved before he ever got associated -- Mr. Edwards ever got associated with RRA continued them on after he did it. He does pro bono work for clients, as you know, in the federal case. He knows that. Epstein knows that. And that's why the facts are important to malicious prosecution claims because, as Judge Sasser says, the idea here, the concept here on a malicious prosecution claim is, this is -- this is the kind -- this is why the privilege shouldn't apply, because the vexatious EFTA01166229 45 1 2 3 4 5 6 7 the Third's precursor opinion, so it -- it -- it clearly is problematic. We our -- our position on it is essentially this: Judge Corrigan in his opinion in the case that I cited says the privilege shouldn't apply either. Then you have what we submit are egregious facts which should -- including a 8 settlement and he continued prosecution 9 afterwards, which we submit it is going to be 10 the light's going to go off and say, Whoa, wait a 11 minute, we can't -- we can't count this the 12 application of privilege in the context of these 13 facts. Your concerns are legitimate and well 14 expressed. No matter how egregious the facts, 15 perhaps that won't make a difference to the 16 17 18 19 20 21 22 THE COURT: Malicious prosecution. 23 MR. KING: Okay. Well, certainly to 24 malicious prosecution. But also your last 25 concern -- application of the privilege to -- to an abuse of process claim, perhaps. But we submit for the reasons that we have identified that the litigation privilege should equally not apply to the abuse of process claim for those reasons. EFTA01166230 el 6 1 THE COURT: Your position is I think it 2 does apply to abuse of process. 3 MR. BREWER: Right. 4 MR. KING: But certainly not malicious 5 prosecution for the reasons that are 6 well-articulated by Judge Sasser and others. And 7 with regard to the reasons I've just expressed to 8 the abuse of process claim. 9 And make sure I didn't miss anything -- 10 THE COURT: Three minutes to wrap up. 11 MR. SCAROLA: And I'm going to use two of 12 them, if I may, Your Honor. 13 THE COURT: Any objection? 14 MR. BREWER: Yes, Your Honor. They're not 15 allowed to split. This is not, you know, a 16 rebuttal on their part. 17 THE COURT: I agree. 18 MR. BREWER: So they're not allowed to 19 split it. 20 MR. SCAROLA: May I have just a moment? 21 THE COURT: Absolutely. Take your time. 22 But I do believe that protocol would dictate only 23 one attorney speak to the issues. 24 MR. KING: Right. 25 THE COURT: Thank you. EFTA01166231 4•/ 1 I have Judge Sasser's opinion. I have it 2 right here or, I should say, her order as opposed 3 to the opinion. 4 MR. KING: All right. You have that. And 5 just to wrap up then, Judge, with regard to the 6 comments in Levin about the other -- the 7 availability of other remedies that are -- that 8 would exist against attorneys if the -- you know, 9 if the privilege were not applied to the attorneys 10 as in Levin, there are a myriad that the court 11 has. Much more difficult when it comes to an 12 individual. And I -- I think there was one other 13 comment made. Let me just double-check my notes. 14 Counsel had referenced the abuse of process 15 claim and whether the facts support the abuse of 16 process claim. We submit from that standpoint 17 they do. We've satisfied all of the elements. 18 They -- they -- and the last comment I'll 19 make here is their focus was you can't have an 20 21 22 23 24 25 abuse of process claim based upon the pursuit of all of these actions that were taken during the course of the proceedings. And we submit that under the circumstances of this case, where this claim was commenced against Mr. Edwards during the course of his prosecution of the underlying claims EFTA01166232 1 2 3 4 5 6 7 8 9 and while multiple other claims were being pursued against him, that under those circumstances the abuse of process claim does survive a challenge to whether or not we have satisfied the elements. The process that's involved in the abuse of process claim is the lawsuit. The subsequent actions that all of the cases talk about are, in our case, the pursuit of all of those efforts during the course of the -- of that case. And 10 they were all done for an ulterior motive. We've 11 satisfied those elements. 12 I don't have the time to get into all of 13 the facts. I tried to give you the essence of 14 what we had by citing to the statement of 15 undisputed facts, Mr. Edwards' affidavit, the 16 materials relating to the filing of our motion for 17 punitive damages which was granted. We gave you 18 the depositions because, unfortunately, to really 19 grasp the entire background on this, you almost 20 have to read the entire depos. I tried 21 highlighting and pulling them out for you, but I 22 couldn't really do that. So I apologize. 23 THE COURT: No, that's okay. 24 MR. KING: But that would end my argument. 25 I appreciate your courtesy. EFTA01166233 1 THE COURT: Thank you and Mr. Brewer for 2 your -- 3 MR. BREWER: A few moments, Your Honor? 4 THE COURT: Sure. 5 MR. BREWER: I forgot to ask you if I could 6 address you from the chair here rather than the 7 podium. 8 THE COURT: That's fine. 9 No, I wanted to thank Mr. King and 10 Mr. Brewer for their initial arguments, and I 11 appreciate very much the professional. 12 MR. BREWER: Your Honor, you seemed to be a 13 little bit more troubled with regard to the 14 malicious prosecution aspects here. I'd like to 15 point out to you that in the case, the Wolfe case, 16 specifically they stated "because the law is clear 17 that the litigation privilege applies to abuse of 18 process, we affirm the trial court's order 19 granting judgment on the pleadings in favor of the 20 defendants below as to that cause of action. 21 Although the law is not as clear whether the 22 litigation privilege also applies for the cause of 23 action for malicious prosecution, we conclude that 24 it does and affirm the trial court's order finding 25 that the litigation privilege also applies to a EFTA01166234 50 1 2 3 4 5 6 7 8 9 worst 10 his attorneys that somehow or another there's a 11 sliding scale. And if you worked longer on the 12 case, or if you put in more pleadings or whatever, 13 that somehow or another that would have an effect. 14 That's not something that I have seen 15 anyway in the trilogy of cases. In fact, what is 16 said in the trilogy of cases is if the litigation 17 privilege applies, it's an absolute privilege. 18 Absolute. 19 The Olson vs. Johnson was mentioned to you 20 to say that to indicate that the -- that malicious 21 prosecution can still survive and exist. And, in 22 fact, the Olson case, which was a case in which 23 three ladies accused this guy of stalking, filed a 24 false police report. The guy got arrested. 25 Actually, I think -- I'm not sure if he went to cause of action for malicious prosecution." That was actually the issue before them because it had already been determined that the litigation privilege applied to the abuse of process in both the Third and the Fourth District Courts of Appeal. That's admitted by the counterclaim in their motion in opposition. I wanted to speak about this idea that the -- the actions were of Mr. Epstein and/or EFTA01166235 51 1 trial, but he was able to establish that he was 2 six miles away at the time of the alleged 3 stalking. And the ladies just lied to get him in 4 trouble. 5 The Olson case was addressed in the Wolfe 6 case, and it said, Wait a minute, that is -- a 7 cause of action for malicious prosecution will 8 stand there because that was an action that was 9 taken outside of the judicial process. 10 THE COURT: And that -- and that's, you 11 know, where, you know, I'll ask Mr. King to 12 briefly address this as well. But, you know, the 13 dilemma the court has here is the language that is 14 reaffirmed in Wolfe and extracted from the 15 Echevarria matter from the Florida Supreme Court. 16 17 18 19 20 21 22 23 24 25 And they quoted and say that Echevarria reaffirmed the proposition -- and I'm using my own words by saying "the proposition" -- that, quote, absolute immunity must be afforded to any act occurring during the course of a judicial proceeding so long as the act has some relation to the proceeding. And they clarify that although not all statements made outside of the formal judicial process are protected by the litigation privilege, an absolute immunity applies to conduct occurring during the EFTA01166236 52 1 course of the proceedings. 2 So that seems to tell me that if Epstein is 3 filing a complaint, if Epstein is seeking 4 discovery, if Epstein is making obnoxious 5 allegations against Edwards -- and I'm, again, not 6 taking a position one side or the other, that's 7 why I'm using the word "if" to preface all of my 8 commentary, as long as it has some relation to the 9 proceeding -- it is afforded absolute immunity. 10 If you're sitting in my shoes, Mr. Brewer, 11 or better yet sitting in Mr. Edwards' shoes, what 12 would be his best argument to defeat your motion 13 on malicious prosecution? 14 MR. BREWER: I don't know that they have 15 one, Your Honor, in light of Wolfe. Not at this 16 level. 17 THE COURT: Is there anything that you can 18 fathom as an officer of the Court that they are 19 claiming Epstein did in either the abuse of 20 21 22 23 24 25 process or the malicious prosecution claim -- and as I said, I'm more concerned with the malicious prosecution claim -- that Epstein did outside of the judicial proceedings? Is there anything alleged here that he did outside of the judicial proceeding, such as -- I saw in the damages EFTA01166237 53 1 portion of the argument made by the Edwards side, 2 and I think it may have had some relation to 3 Judge Crow's questions about damages relating to 4 Mr. Edwards but I saw that there were 5 some --that that Mr. Edwards felt there was 6 some threat to his or -- to him and his family. 7 Has there been any such threats made to your 8 knowledge by Mr. Epstein that would have gone to 9 him or his family? 10 MR. BREWER: Your Honor, I'm late to the 11 game. I was not a participant or counsel here 12 until, oh, probably three or four months ago. I 13 have done my best to familiarize myself in what 14 has gone on prior, but it's voluminous. And so I 15 can't swear to you that I've read everything or 16 seen everything. I, however, have no knowledge of 17 Mr. Epstein making any threats to -- towards 18 Mr. Edwards. 19 THE COURT: I'm just using that as an 20 example. 21 MR. BREWER: Well, I don't have any 22 knowledge of him making threats to Mr. Edwards or 23 to his family. 24 THE COURT: Anything outside of the 25 judicial proceeding as potentially or allegedly EFTA01166238 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 MR. KING: There's nothing alleged. 15 Mr. Edwards' testimony, though, was that he was 16 being stalked by an investigator which gave him 17 the additional concern. But that's not 18 specifically alleged as a matter that, you know, 19 that forms the basis for the malicious prosecution 20 or the abuse of process claim. It's not 21 specifically set forth in the pleadings. 22 THE COURT: How do I get around this 23 Echevarria language? Again, I recognize what's 24 gone on here, but personal empathy doesn't have 25 any part in a courtroom. It just doesn't and obnoxious? And as Mr. King brought out earlier the allegations being horrifying, egregious, no matter how you might identify those allegations that were quickly withdrawn, anything that you're aware of that went on outside of the judicial process that is being alleged here? MR. BREWER: Not that is being alleged here, Your Honor, no. THE COURT: Mr. King, anything that's being alleged here that goes outside of the broad spectrum that I have read into the record that has its genesis in Echevarria and was quoted by the Wolfe Third District Court of Appeal opinion? EFTA01166239 55 1 2 3 4 5 6 7 8 shouldn't. I ruled in your favor and I've ruled against you. I've ruled in Mr. Goldberger's favor; I've ruled against him. I've ruled in favor of Mr. Edwards' claims and contentions; I've ruled against him. But I'm just having difficulty coming away from the reaffirmation of the Florida Supreme Court's blanket statement here that absent extra 9 judicial activity, everything that is occurring 10 during the course of a judicial proceeding, so 11 long as the act has some relation to the 12 proceeding, is subject to absolute immunity. 13 MR. KING: If I may? 14 THE COURT: Absolutely. 15 MR. KING: Levin -- neither Levin nor 16 Echevarria dealt with the malicious prosecution 17 claim, which is really what I'm going to focus on 18 now. 19 THE COURT: But now I'm dealing with -- 20 and, again, forgive me for interrupting, but just 21 to make clear the precedential value that I have 22 to ascribe to Wolfe, and as you indicated, the 23 Fourth in its case seems to, at least from the 24 abuse of process part of the matter, align itself 25 with that same side. The Third District Court of EFTA01166240 56 1 Appeal is an appellate court that I must follow 2 unless there's a specific ruling to the contrary 3 by the Fourth District Court of Appeal. And the 4 Third is crystal clear in its analysis. 5 Whether you or I agree with it is not for 6 7 8 9 10 11 12 13 14 I'm left with this legal analysis while cogent, 15 it's clear, while short it's clear. 16 MR. KING: But that is why all of the 17 positions that I have articulated that would 18 suggest that Levin nor Echevarria would apply to a 19 malicious prosecution claim because it is 20 distinctly different from the nature of -- just as 21 Judge Sasser says, "It's not something that is 22 going on during the course of proceedings. It's 23 the proceeding itself." 24 Now that's what Wolfe -- Wolfe takes the 25 position otherwise. It says, Well, that -- that me to say. But its analysis is abundantly clear and it, again, reaffirms the Supreme Court language that talks about where we're within the judicial proceeding, as repugnant as it may be, as long as it bears relation, some relation, just let this be the rather broad language utilized by the Supreme Court of Florida, absent extrajudicial process -- extrajudicial actions, better stated, EFTA01166241 57 1 clearly falls within the privilege. 2 THE COURT: And Wolfe is the binding 3 precedent. With all due respect to my suite mate, 4 she's not. And, you know, as a fellow circuit 5 court judge, again, her opinion is meticulous and 6 well-written, but it flies in the face of 7 precedential value here, and that is the Wolfe 8 case that ties the bow, so to speak, around the 9 malicious prosecution case. 10 Where there may have been before something 11 to hang one's hat on, the probable cause issue, as 12 I described before, clearly a factual issue. 13 Whether the case ended in a bona fide termination 14 in favor of Mr. Edwards, subject certainly to 15 factual review. But that -- but the elements are 16 taken away from us, in my view, from a trial 17 court's decision-making and we're left with the 18 global analysis that was rendered by the Third 19 District Court Of Appeal. 20 And the bow is tied to include malicious 21 prosecution cases as long as those actions, as 22 alleged and conceded by you, and I appreciate 23 incredibly the concession, but as conceded that 24 all of the allegations contained in the operative 25 Fourth Amended Complaint relate to the judicial EFTA01166242 58 1 proceeding in some form. 2 MR. KING: If I may, Judge, just a final 3 conclusionary remark? 4 THE COURT: Absolutely. Please. 5 MR. KING: I would harken back to the 6 impact of Olson, which even though it does not 7 deal with a post-civil complaint issue such as you 8 have here, the language of the opinion is the 9 litigation privilege does not apply to malicious 10 prosecution. There is -- we submit that that sets 11 forth at least a conflict on that issue that 12 allows you to then peruse all of the issues that I 13 discussed. 14 THE COURT: Let me look at that Olson case 15 specifically, please. 16 MR. BREWER: I have a copy here if you 17 would like, Your Honor. 18 THE COURT: No. You have both done an 19 excellent job in tabbing all of these materials, 20 and I want to again compliment both sides on their 21 presentations and their performance as well as 22 well presentations. It's extremely gratifying, 23 especially when I've had I think 14 hearings in 24 addition to the 8:45s today to see the kind of 25 advocacy that I'm seeing here at this hearing. EFTA01166243 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But I will take a quick look at that Tab 16 that I have. Thank you. The Olson case that is cited in, and I've read somewhat quickly, but I believe I've picked up the genesis. And the import of the opinion deals with prelitigation statements made by an individual who is accusing Olson of stalking. And the court distinguished that claim privilege from a defamation case that was addressed in a case called Fridovich vs. Fridovich, 598 So2d. 65, Florida Supreme Court case 1992, in which the Supreme Court was presented with a certified question of whether a person who makes statements to law enforcement about another individual prior to the instigation of judicial proceedings. And that is important here I think in our review of the case since those statements that were made allegedly by the accuser in Olson were made prior to the instigation of judicial proceedings and whether those statements were protected by an absolute privilege for against defamation, and the court held defamatory statements voluntarily made liability that by private individuals to the police or to the State's Attorney's Office before institution of criminal EFTA01166244 60 1 charges are presumptively qualifiedly privileged. 2 And such voluntary statements are treated 3 differently than statements made under the State 4 Attorney's investigatory subpoena, which are 5 encompassed within a judicial proceeding and thus 6 are absolutely privileged. 7 So there is that distinguishing 8 characteristic here as well. And, again, the 9 issue was met head on by Wolfe. It was not 10 discussed in the Olson case, respectfully, that I 11 can gather here. So based on the Third District 12 Court's decisions in Wolfe quoting in large part 13 from the Florida Supreme Court's decision in 14 Echevarria, whereas here all of the allegations 15 made in both the abuse of process claim and the 16 malicious prosecution claim, as conceded by the 17 Edwards side, are acts occurring during the course 18 of a judicial proceeding and bear some relation to 19 the proceeding, the Court has no other alternative 20 than to grant the motion on both counts. 21 MR. BREWER: Your Honor, I have prepared an 22 order which I think fairly closely -- it does not 23 have in it about the conceding the points, but it 24 does grant the motion based upon the cases that 25 you have just indicated. EFTA01166245 61 1 THE COURT: I would ask you to kindly go 2 ahead and order the transcript and track the 3 language that I have tried to utilize here 4 distinguishing Olson, as well in following the 5 Supreme Court's directive in Echevarria and the 6 Third District Court of Appeal dictates in the 7 Wolfe case. 8 MR. BREWER: Yes, Your Honor. 9 THE COURT: That's the cornerstone of the 10 Court's decision. 11 Again, thank you all very, very much for 12 your input and your professionalism and your 13 arguments. No one could have done a better job on 14 both sides. So thank you very much. 15 MR. BREWER: Thank you, Your Honor. 16 THE COURT: Thank you, Madam Court 17 Reporter. 18 THE COURT REPORTER: Thank you, Your Honor. 19 (Thereupon, the proceedings were concluded 20 at 4:23 p.m.) 21 22 23 24 25 EFTA01166246 62 1 2 3 4 STATE OF FLORIDA 5 COUNTY OF PALM BEACH ) 6 7 8 I, Robyn 9 Court Reporter, State 10 was authorized to and 11 foregoing proceedings 12 and complete record of 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT CERTIFICATE Maxwell, Registered Professional of Florida at Large, certify that I did stenographically report the and that the transcript is a true my stenographic notes. Dated this 29th day of January, 2014. ROBYN MAXWELL, RPR, FPR, CLR REALTIME SYSTEMS ADMINISTRATORS EFTA01166247