EFTA00590096.pdf

Page 1 IN THE CIRCUIT COURT OF THE 17TH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, FLORIDA CASE NO. 15-000072 BRADLEY J. EDWARDS and PAUL G. CASSELL, Plaintiff/Counterclaim Defendants, - vs- ALAN M. DERSHOWITZ, Defendant/Counterclaim Plaintiff. / TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE THOMAS LYNCH Broward County Courthouse 201 Southeast 6th Street Fort Lauderdale, Florida 33301 May 4th, 2016 9:30 a.m. - 10:00 a.m. APEX REPORTING GROUP EFTA00590096 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 2 APPEARANCES: For the Defendant: CHARLES LICHTMAN, ESQUIRE Berger Singerman, LLP 350 East Las Olas Boulevard, Suite 1000 Fort Lauderdale, Florida 33301 For the Nonparty: SIGRID MCCAWLEY, ESQUIRE Boies Schiller & Flexner, LLP 401 East Last Olas Boulevard, Suite 1200 Fort Lauderdale, Florida 33301 APEX REPORTING GROUP EFTA00590097 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 THEREUPON: MR. LICHTMAN: Good morning, Judge. Charles Lichtman of Berger Singerman. I'm here on behalf of Alan Dershowitz, defendant in this case. This is our motion to continue hearing and motion to strike the motion of nonparty motion for sanctions, and to be sure, all that we're really hearing today is our motion to strike, because the motion to continue hearing was moot from some time ago. There are some cases that are about money, and there are some cases, Your Honor, that are about much more, and this is one of those cases. This is a case about reputation, about two people's names, two lawyer's names, where their reputations are at stake. And reputations, not like money, are irreplaceable. And in this case, we have Mr. Dershowitz, my client, who is a world-renowned lawyer and legal scholar who was accused of some despicable crimes. On the other hand, we have Mr. Edwards and Mr. Cassell. I don't know Mr. Cassell. I know Mr. Edwards well. He's a great lawyer. He's also admittedly, and everybody knows it, a good friend. He has been. APEX REPORTING GROUP EFTA00590098 Page accused of libel, and you can say, tangentially, 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 malpractice. To this day, you have two good men, both who are convinced to this moment that they were right about their respective positions and two men who are fighting hard to do -- make sure that there was no damage to their reputation. This Court knows this was a very hard fought case, and I started with the premise of this case is different, because we were fighting for reputation. It's not like fighting for $100,000 or whatever. Well, now the case is over. There was a confidential settlement agreement that was reached. It was an extraordinarily difficult process. I think you know a little bit about that process. But the most important thing is it is over. Everybody wanted it over. Mr. Edwards wanted it over, Mr. Cassell wanted it over, and Mr. Dershowitz wanted it over. Everyone wanted their lives back, and I think that if you were to talk to the parties, they would even use that expression to some extent. So the settlement which resolved on April 8th, 2016, the parties jointly filed -- THE COURT: I read about it in the Boston APEX REPORTING GROUP EFTA00590099 Page 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Globe. MR. LICHTMAN: Okay. Well -- THE COURT: For real. I read something else in the New York Times one weekend. I learn things about my cases by reading it in the newspapers. MR. LICHTMAN: Well, actually, then the newspaper counts turned out to be a very, very complicating part of why we're here today. So on April 8th, 2016, a stipulation of dismissal with prejudice was filed by the parties. There was no reservation of jurisdiction in that stipulation, and that was an agreed upon stipulation, the language of which was stipulated to carefully. No reservation of jurisdiction by the parties for the present pending motion for sanctions. The case was dismissed with prejudice the moment of its filing. That divested the Court of subject matter jurisdiction. There is clear law under Rule 1.420 that the effectible plaintiff's voluntary dismissal is jurisdictional. There's a Florida Supreme Court case, Pino, P-I-N-O, versus Bank of New York. And in that case, the Court said that once a case is voluntarily dismissed, the trial court is APEX REPORTING GROUP EFTA00590100 Page 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 divested of jurisdiction to continue the case. Now, the Court's exact quote was the voluntary dismissal serves to terminate the litigation to instantaneously divest the Court of its jurisdiction to enter or entertain further orders that would otherwise dispose of the case on the merits and preclude revival of the action. And then there are cites in my motion that cite to another Florida Supreme Court case and two Fourth DCA cases, all of which say the exact same thing. In our motion, we address the Whiteside case, which I think is extremely probative. That case involved a petition for writ of certiori involving discovery disputes and sanctions by a third party that was not in the lawsuit, a nonparty to the circuit court case. And in that case, the trial court entertained several motions and ultimately granted a motion for sanctions against the petitioner. It went up on appeal to the First DCA, and the First DCA held that, quote, one not a party to a case has no standing to request relief from the Court, and therefore, quote, the trial Court departed from the essential requirements of law. APEX REPORTING GROUP EFTA00590101 Page 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Our case is even better, because in this instance, the case was dismissed. To be sure Ms. , Ms. Guiffee never had standing to participate in this case. This was a two-party action based on defamation claims by Mr. Edwards and Mr. Cassell against Mr. Dershowitz and then the counterclaim for libel back against them. And this is guided now by Rule 1.210, which describes who can be a party in the lawsuit. It says all parties having an interest in the subject matter of the action and obtaining the relief demanded they join as plaintiffs. was not a nominal party, was not a proper party, was not a necessary party, or an indispensable party. And in each of those distinctions which I discuss in my brief, the concept focuses on their rights as they would be effected by a judgment, meaning where do they stand with respect to the merits. Similarly, Rule 1.230 deals with intervention, and anyone claiming an interest in litigation may be permitted to assert a right by intervention which shall be in subordination to and in recognition of the propriety of the main proceeding. APEX REPORTING GROUP EFTA00590102 Page 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Ms. Guiffee never sought leave of court to intervene, never sought to become a proper party, whether it was as a plaintiff, as a defendant, as a third party. All she did was file a motion. No leave of court anywhere. And that motion has to identify, if it was to have been filed, the interest at stake that the would be intervener would assert. And then there's a whole body of case law that we also provided, including Florida Supreme Court case -- the Morshaw case, that under the general rule, one not a party does not have standing to request relief. So we get to the point of settlement, and post-settlement, there's a hearing that occurred on April 21st, 2016. I'm going to hand up to you an abstract of what occurred in this hearing. This is another one of these companion cases, Guiffee versus Gizlay Maxwell, United States District Court for the Southern District of New York, held in Federal court before the Judge Honorable Robert Sweet. Present at that hearing happened to be Ms. McCawley and Brad Edwards and Mr. Cassell. I will tell the Court I think you know I have a very APEX REPORTING GROUP EFTA00590103 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 9 limited engagement, and that deals with this case. I don't know much about the Guiffee versus Maxwell case in Federal court there or any of the other pending litigation, but I do know what was said in plain language. And if you take a look at -- first off, the motion -- the matter that was before the Court was a motion for mission pro hac vice by Mr. Edward and Mr. Cassell. And the District Court spent the first 20 something pages talking about how he was troubled by the issue of just allowing their right to appear pro hac vice right then and there because of issues going on in this case. That's what you can get from the transcript. And I'm happy to leave with you the full copy of the transcript, if you would like to read that. But to be sure, when you get to Page 25 after the judge has expressed all sorts of concerns, Ms. McCawley says Your Honor, one more thing. I didn't realize that my counsel can submit a stipulation to you because that case has been settled. That's our case. All right? Now, as you go through this, you'll see that the judge was very concerned about getting and APEX REPORTING GROUP EFTA00590104 Page 1C understanding what happened in this case. And at 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 one point on Page 26, there's a statement by Mr. Cassell that Mr. Edwards can briefly explain Florida procedure, and he says -- this is what Cassell says. The case has been dismissed but does not require a court signature. Then Mr. Edwards steps up, and Mr. Edwards recites the law that we all know, which is that the case is dismissed by stipulation by both parties and the defendants and counsel, and that was done, and the case was dismissed. And the Federal judge says that's filed in this case? Yes, it's filed in this case and in the court, and he says he's going to get a copy over immediately. Then it goes over to the next page. And this is really important. Mr. Edwards says just with respect to the affidavit -- because they were talking about an affidavit to clear up everything -- there needs to be an affirmation that we have no other claims that relate to the statements in this case. Is that what we're saying? And then the judge says he wants something to seem a little broader. At the bottom, he says -- Line 13 -- if I can get an affidavit saying that APEX REPORTING GROUP EFTA00590105 Page 11 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you're unaware of any claims against you or any intention to make a claim arising out of the circumstances surrounding this lawsuit that should be brought. Well, Ms. McCawley was in the courtroom. Ms. McCawley did not say to the district judge, by the way, Your Honor, there is something you should know, you should know that we have a pending motion for sanctions. So from our perspective -- and Mr. Edwards and her were co-counsel, from our perspective, the matter is not resolved. But it doesn't matter, because the matter was resolved. She could have said it or not said it. The Florida law that we recited to makes it crystal clear that the case was settled. Now, when you look around, and, you know the old expression the empty chair, Mr. Edwards and Mr. Scarolla are not here for a reason. And I represent to you as an officer of the Court that I had numerous conversations with them about this, including extremely recently. They are not here today for a reason. They want this case done and over with. Mr. Edwards has other things to do with his life. He wants to get APEX REPORTING GROUP EFTA00590106 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 12 on with it. Mr. Scarolla has stated very clearly, not taking a position. He doesn't want any part of this, either. And here's the reason why. You said that you read those newspaper articles. Well, the time period immediately after the execution of settlement papers was probably more intense than the time period leading up to the execution of settlement papers. A lot of stuff happened which I'm not going to get into. It's not that germane for right now except for the Court to know -- and this has been no secret, that if the Court was to decide for some reason that it wanted to hear this motion for sanctions, and I don't think you can and I don't think you should, that it will absolutely blow the lid off this settlement, and the following will happen. And I make this as a representation to the Court. There will be two arbitrations. There will be an arbitration by Edwards against Dershowitz, there will be an arbitration by Dershowitz against Edwards. There will be a sanctions motion filed against the Boies firm. If the motion disappears, that motion -- our APEX REPORTING GROUP EFTA00590107 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 13 motion, our counter-motion, because then the Court well have subject jurisdiction, our counter-motion will not be filed. There will be potential sanctions against the lawyers on the other side that have been in this case. There will be bar grievances. Here's the point of where we're at, and it's why I started with the argument and the somewhat impassioned discussion that this is about reputation. People want to be done with this. Ms. McCawley has no role in this case. Mr. Edwards, the person that would be most impacted by this, is not here today, and it's for a reason. He wants to get on with the good work that he's otherwise doing against Mr. Epstein, and he should. Mr. Dershowitz wants this done, as well. That's why there has been radio silence for the last two weeks now. I urge you to please follow the Florida law, consider this matter closed and dismissed. Thank you. THE COURT: Thank you. Yes, ma'am? MS. MCCAWLEY: Very quickly, because I know we don't have much time. Your Honor, Sigrid McCawley on behalf of Ms. Guiffee. APEX REPORTING GROUP EFTA00590108 Page 14 Mr. Lichtman has done a nice job at trying to 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 muddy the waters, but what's very clear here, Your Honor, is that you always have jurisdiction to enforce any of your orders. That never goes away, whether it be by a voluntary stipulation of dismissal or otherwise. That's the Erickson case, which is a First DCA case. And more importantly, the Whippey case, which is 961 So. 2d 349. If I could bring Your Honor a bench book to follow along with my argument? THE COURT: Sure. MS. MCCAWLEY: Thank you. THE COURT: Is it different than the one I have? MS. MCCAWLEY: It is, Your Honor. THE COURT: Okay. MS. MCCAWLEY: Because the voluntary dismissal came up after our briefing. So the one thing I want to clear up is this representation, which I believe is a misrepresentation of what happened before Judge Sweet. What was being addressed there is -- THE COURT: Is that the judge in New York? MS. MCCAWLEY: Yes, right. So the representation that was made there is exactly what APEX REPORTING GROUP EFTA00590109 Page 15 is the fact here, and that's that the party did 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 file a stipulation of dismissal in this case. I'm not disputing that, and I don't dispute that -- I didn't dispute that at that hearing. That is what has occurred. What I dispute is that that stipulation of dismissal does anything to take away my client's ability to be able to move forward with what Your Honor issued, the seal order, which was then violated, and we have a motion for sanctions and a motion to strike that seal order pending. Just to go back and give you the history quickly, as you'll remember, you mentioned reading the article. On Friday, December 11th, Mr. Dershowitz -- and before I get into that, I just want to address the threats and the bar agreements as it was, you know, mentioned here by Mr. Lichtman. MR. LICHTMAN: They are not threats. MS. MCCAWLEY: Well, that's fine. The point is to say that in open court as if that's supposed to dissuade the Judge from making a ruling on the law and the merits is inappropriate, in my view. But the threats have been ongoing. I mean, Mr. Dershowitz filed a motion, as you'll remember, APEX REPORTING GROUP EFTA00590110 Page 16 over objections attaching an affidavit purporting to spew misrepresentations about settlement discussions, and then served it to the New York Times. We got here as quickly as we could filing an emergency motion to try to stop that, and the New York Times had published the article by the next day. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Your Honor, you will remember that we had a hearing before you pretty quickly on December 18th, and you found that those were -- you made a finding that those were confidential settlement discussions, and he should not have been revealing those in any manner. And so you sealed it. They asked for more time. The only reason you didn't rule on my motion for sanctions that day is because they asked for more time to be able to brief the motion for sanctions which included the motion to strike that affidavit, because we were seeking the relief of having it stricken. So you temporarily sealed that pend ing hearing the motion. Now, you'll remember, Your Honor, as well, that at that hearing, I was concerned about Mr. Dershowitz continuing to say these things, and APEX REPORTING GROUP EFTA00590111 Page 17 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 whether his counsel could control him. And Mr. Saffer, you said, Your Honor, in that transcript, and that's in your -- the PowerPoint I have for you. You said I think he understands that he needs to stop doing this. And Mr. Saffer said yes, I'll advise him that he needs to stop doing this. Just a few weeks later during his deposition -- and I'm not going to say it in open court because it's sealed -- but you'll see it in highlight, it was in the redacted motion that we filed, he revealed again and attempted to put into the public statements that occurred during those settlement discussions. So that's after Your Honor told him not to do it and you sealed the motion. THE COURT: I know, but is that truly the issue that we're dealing with today? MS. MCCAWLEY: It is, Your Honor, because what they are saying is that this -- your jurisdiction has evaporated. And what I'm saying is that's not the case. You always have jurisdiction to enforce one of your orders. You always have jurisdiction over that. So they cannot -- there's standing for a nonparty to be able to invoke that jurisdiction, APEX REPORTING GROUP EFTA00590112 Page 18 particularly here where Mr. Dershowitz is the one 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 who subpoenaed her into this case. So she's not a party, but he subpoenaed her, then engaged in these discussions with her and her counsel, and then violated those discussions and is now saying Your Honor, you can't touch this issue, you can't control your own courtroom or discovery or any of those issues that go on because she doesn't have standing. That's not correct, Your Honor. And we pointed to cases in our brief. You'll see a number of cases in the 11th Circuit, for example, where when you're dealing with a Rule 11 issue, you have jurisdiction. You'll see the Sweetwater case which discusses jurisdiction in our briefing. You'll see that the Florida rules of judicial administration allow you to have a nonparty label something confidential. So to say that you can't then control that confidentiality is simply wrong. In fact, the case that my colleague here cites, which is the Whiteside case actually has a provision in it where it says if it's a protective order, there's an exception to the rule, confidentiality, and you can then enforce your orders, Your Honor. So there's two things here. You did the right APEX REPORTING GROUP EFTA00590113 Page 19 thing. You sealed the order correctly, and now you 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 have the power to continue to enforce that order and violations of that order and hear those things regardless of whether the case has been dismissed. My colleague did a nice job trying to say well, the parties are over. This is done and over with. But you'll remember, Your Honor, Mr. Dershowitz called my client in the press a prostitute, a bad mother, and a liar. Then, he spewed again confidential settlement discussions with that same goal of getting that information into the press. It's simply wrong to say that you cannot control your courtroom, that you cannot control the parties that were actionable in this manner when they are abusing a nonparty. It's simply wrong, Your Honor. So I submit to you that we have given you the cases -- the Erickson case particularly, and the Whippey case. Those are in your binder. You did hear from my colleague here about the issue of intervention. We don't believe that's necessary, but to the extent that the Court found that there needed to be some intervention in this action, the Lewis case, APEX REPORTING GROUP EFTA00590114 Page 20 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 which is 499 So. 2d 905. That's a First DCA case. That allows for intervention. That's in the pocket of your binder. It allows for intervention even after a case has been resolved if a nonparty is being effected by that case. She's clearly effected here, Your Honor. She -- but you don't even need to go there, because you're able to control your courtroom at any time and you have jurisdiction at any time over any of your prior orders. So Your Honor, I submit to you that you have the authority to hear this issue, that you should hear this issue because it's a violation of justice to allow a party to engage in this kind of behavior and not have to face the Court when it comes time to hear that. They have done a great job at delaying this. You'll see that, you know, we had this set a number of times. There have been numerous counsel that Dershowitz had, strategically, in my view now, in hindsight, pushed this off. And even when we had it a couple weeks ago, before the dismissal was on file, again pushed this by filing a continuance with new counsel. So, you know, Mr. Dershowitz is a lawyer, APEX REPORTING GROUP EFTA00590115 Page 21 himself. He's very savvy. He knew exactly what he 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 was doing here. He did it for the reason to try to harm my client publicly, to try to create an impression of the public that would help him in this matter and other matters, and Your Honor, he should be sanctioned for his conduct. That affidavit that contains those falsities should be stricken from the record, and that's the relief we're requesting. MR. LICHTMAN: Very brief rebuttal, Judge. THE COURT: Sure. MR. LICHTMAN: Justice? Whose justice is counsel seeking today? Not justice for the Court, justice for her, justice for her client. Not justice for Mr. Edwards and not Mr. Dershowitz, who agreed to this settlement. Your Honor has been on the bench a long time. You have had many outstanding orders on discovery issues that get resolved by settlement of the case. How many times have you seen an issue where there has been a third party, not someone who has been properly brought into the case that goes to the point of getting an order from you. That probably should have been raised before I was in the case. It wasn't, but it's being timely APEX REPORTING GROUP EFTA00590116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 22 raised now. That order should have never been entered without her following procedural niceties. The case was dismissed with prejudice. The case should be over. Let everybody go in peace, Your Honor. This is within your discretion, for sure. Give the parties what they bargained for and let them move on. THE COURT: All right. I'm going to reserve ruling. I should be able to get word to you pretty quickly. MS. MCCAWLEY: Thank you, Your Honor. We're on your special set for next Thursday, the 12th -- I'm sorry, the -- THE COURT: A week from tomorrow. MS. MCCAWLEY: Yes. THE COURT: I'll definitely get word to you before then. I will likely get word to you by the end of the week. MS. MCCAWLEY: Thank you very much. MR. LICHTMAN: Two things, Your Honor. First, may I hand up a proposed order? THE COURT: Sure. I'll take a look at what you have. MR. LICHTMAN: And second, I'll alert you now, APEX REPORTING GROUP EFTA00590117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 23 virtually, no one is available on the 12th. We would have to take Mr. Moyas's deposition, we have to take Mr. Edowitz's deposition MS. MCCAWLEY: Your Honor, we've cleared that date. I mean, we've had that special set for months. MR. LICHTMAN: We cleared that date subject to this. THE COURT: Well, I'll tell you what. The good thing is I've got the time to read everything, and I'll let you all know. MS. MCCAWLEY: Great. Thank you, Your Honor. MR. LICHTMAN: Thank you very much. THE COURT: Take care. (Thereupon, the proceeding was concluded.) APEX REPORTING GROUP EFTA00590118 Page 24 CERTIFICATE OF COURT REPORTER STATE OF FLORIDA COUNTY OF BROWARD 6 I, JANIS TIERNEY, a Court Reporter in and 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for the State of Florida at Large, do hereby certify that I was authorized to and did report the proceedings in the above-styled cause before the Honorable THOMAS LYNCH, at the time and place set forth; that the foregoing pages, numbered from 1 through 23, inclusive, constitute a true and complete record of my notes. I further certify that I am not an attorney or counsel of any of the parties, not related to any of the parties, nor financially interested in the actions. Dated this 4th day of May, 2016. 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