EFTA00595514.pdf

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION www.flsb.uscourts.gov IN RE: CASE NO.: 09-34791-RBR ROTHSTEIN ROSENFELDT ADLER, P.A., CHAPTER 11 Debtor. MOTION FOR EMERGENCY HEARING AND FOR A STAY OF COURT ORDER DIRECTING PREPARATION OF PRIVILEGE LOG Movant, LM, through counsel, pursuant to L.R. 9075-I hereby requests an emergency hearing before December 28, 2010 and moves to briefly stay enforcement of its Order [DE 1068] compelling LM and her counsel Fanner, Jaffe, Weissing, Edwards, Fistos, & Lehrman, P.L. ("FJW") to produce a privilege log in order to permit the state court: (1) to first rule on the pending motions for summary judgment and for protective order which make the privilege log and production irrelevant; and/or (2) to permit FJW sufficient time to prepare an appropriate privilege log relating to documents which now exceed 24,000 email-related pages. In support, FJW on behalf of LM states as follows: I. BACKGROUND A. The Pending Summary Judgment and Protective Order Motions As this Court is well aware, Jeffrey Epstein (a convicted sex offender) has sued one of his alleged victims, ■ as well as attorney, Bradley J. Edwards, Esq.', in Florida state court for conduct that allegedly occurred in the course of Edwards' representation of multiple young female victims of Epstein's sexual abuse. While an employee of the now defunct Rothstein, Rosenfeldt, Adler firm and with his current firm, Edwards filed and pursued civil lawsuits Mr. Edwards, an attorney with the FJW firm, is represented by Jack Scarola of the firm Searcy, Denny, Scarola, Barnhart, and Shipley.. EFTA00595514 against Epstein to recover damages for Epstein's extensive pattern of molestations. Mr refers to one of Mr. Edwards's clients who was an Epstein victim. In retaliation and to try and intimidate Edwards and his young clients, Epstein brought his state lawsuit alleging that Edwards had somehow fabricated the claims. Edwards has filed a comprehensive motion for summary judgment against Epstein in state court, detailing how he is entitled to judgment on each and every one of Epstein's frivolous claims. Epstein has yet to file any response to Edwards' comprehensive summary judgment motion. The hearing on that Motion is set for January 5, 2011 in front of the state trial court. In addition to the Summary Judgment Motion, Edwards has filed a Motion for Protective Order in the state court case to narrow the exact state subpoena that Epstein is trying to litigate in this Bankruptcy Court. That Motion is set for hearing for January 27, 2011. A Notice of Filing containing that Motion was filed with this Court [DE 1197]. B. Epstein's Attempts to Involve this Court in the State Litigation Despite that summary and protective order motions are pending in state court, Epstein continues to harass Edwards through pursing discovery requests connected with the state court case and has tried to disrupt the state court proceeding by getting this Court involved in enforcement of an identical subpoena issued in state court. In particular, on April 12, 2010, Epstein propounded an extremely broad Request for Production (RFP) to Edwards under state- court discovery procedures. Containing some 27 different requested items, the RFP seeks all sorts of electronically stored information, including a raft of internal emails between Edwards and other attorneys, paralegals, expert witnesses, investigators, and others who worked on the civil lawsuits against Epstein. On May 11, 2010, Edwards duly responded to the request for production. Through his legal counsel, Edwards noted that many of the requests sought attorney- client or work-product privileged information and others were overly broad and unduly burdensome. On April 16, 2010, four days after making the requests to Edwards — without EFTA00595515 waiting for his responses to the requests, much less a court ruling on Edwards' objections - Epstein served a state-court subpoena duces tecum for documents on bankruptcy court-appointed trustee, Herb Stettin, which asked for the identical inform. Mr. Stettin never represented any of the underage females who had been sexually abused by Epstein. Instead, Mr. Stettin has possession of certain records related to this case — and many more entirely unrelated to this case — because he was court-appointed as bankruptcy trustee for the now-defunct law firm of Rothstein Rosenfeldt Adler (RRA). RRA's electronic database, including all electronically stored files and emails, were left in the possession of Stettin. Because Stettin was not involved in the sexual abuse litigation against Epstein, he does not have detailed knowledge of the persons or subjects discussed in the various e-mails and other records. On June 28, 2010, a hearing was set before the state court on Epstein's Motion to Compel the Trustee to produce the documents responsive to Epstein's subpoena. On that date, Stettin's counsel, Edwards' counsel, and counsel for Epstein all met in the hallway outside the courtroom and worked out an agreed resolution to the dispute. All counsel agreed that Stettin would turn over to Edwards's counsel all documents responsive to the subpoena and that Edwards' counsel would then prepare a privilege log and produce all documents that are not subject to objection or privilege. According to their understandings, counsel for Epstein was to prepare a consent order memorializing the agreement. It never did. Instead, Epstein decided to launch litigation in yet another forum — the United States Bankruptcy Court for the Southern District of Florida. On July 14, 2010, Epstein filed a Motion to Compel production of numerous documents from Trustee Stettin in the bankruptcy proceeding being overseen by the bankruptcy court [DE 672]. This filing sparked a series of motions for protective orders [DE's 818, 819, 1022]; appointment of Broward County Circuit Judge Robert Carney as special master to take all materials responsive to the subpoena from Stettin and to prepare a privilege log [DE 888]; filings of EFTA00595516 motions for clarification by the special master due in part to the difficultly of the requested materials [DE 1013]; and filings other motions regarding the substance of the requests and the tactics Epstein was employing to force a federal court to rule on state-court request for documents many of which included privileged materials. II. ARGUMENT A. An Emergency Ruling Is Necessary 1. The Agreement on the Production of the Privilege Log In the midst of the foregoing, Epstein's counsel and FJW entered certain understandings to work out the production pursuant to the Court-ordered production of email [DE 1068] and creation of a privilege log. Under these understandings, Stettin's counsel produced a series of three CDs to FJW at different times. However, these CDs did not duplicate what was provided to the special master, which has led to confusion over the materials subject to the privilege log. Also, FJW and Epstein's counsel entered into an agreement that FJW would produce the privilege log 15 days after hard-copies of the email were bates labeled and produced to FJW. The emails were produced in seven bankers boxes on December 13, 2010. According to the agreement, the due date would thus be December 28, 2010. FJW entered this agreement based upon its reliance on the representation by counsel for the trustee that there would be 6000-7000 emails to review. FJW indicated to the Court in previous motions that substantially more emails were produced in the original CD'S; however, counsel for the trustee informed FJW that the original production was incorrect and included many more emails than were intended to be produced. With that in mind, and with the understanding that, again, there would be approximately 6,000 emails produced, FJW entered into an agreement as to privilege log production time. Yet, the total emails actually produced total at least 24,000. Many of the email are privileged. It is physically impossible to review all of these emails in 15 days, not to mention EFTA00595517 creating a privilege log from all of these emails (a document that itself could be a hundred pages long or more). This task would force the operation of FJW to come to a halt and require every attorney and staff member to stop everything and dedicate 100% of their time to creating this privilege log at a great cost to FJW. An expeditious hearing and ruling on this Motion is thus needed prior to December 28, 2010, so that FJW will not risk noncompliance with this Court's orders regarding production of the privilege log. 2. Production of the Log Now Makes No Sense Furthermore, staying production of the privilege log makes good sense. As set forth above, two state court motions have been properly presented, and Edwards is requesting that this Court merely allow the state court to rule on properly presented motions regarding how to proceed in its own case. So as a simple matter of federal-state comity, this Court should stay enforcement of its order for a short period of time. A short stay would not harm anyone and would likely lead to a rapid resolution of the issue. If the state court agrees either to grant the motion for summary judgment or to narrow the scope of subpoenas, it would essentially obviate the need for the Bankruptcy Court to rule at all on any issues dealing with the scope of the subpoena or the privilege issues that must ultimately be decided by the state court. On the other hand, if the state court rejects the motions, then LM agrees to produce the privilege log as directed. In either case, the matter will be quickly resolved in a matter of weeks. And only by leaving the issue up to the state court can duplication and potential unfair burden be avoided. A short delay of a few weeks to the other side will cause no prejudice. B. Certification Under Rule 9075-1(B) The undersigned that a bona fide effort was made to resolve this matter without a hearing, but was unsuccessful. EFTA00595518 WHEREFORE, FJW on behalf of LM respectfully requests that this Court stay further enforcement of its court order compelling production of a privilege log by FJW pending further rulings on the Summary Judgment Motion and Motion for Protective Order in the state court action where Epstein has chosen to file his lawsuit. I HEREBY CERTIFY that a true and correct copy of the foregoing was served electronically to the debtor, the attorney for the debtor, the trustee, all CM/ECF subscribers, and by email or U.S. Mail on those parties listed on the attached service list this 16th day of December, 2010. I HEREBY CERTIFY that I am admitted to the Bar of the United State District Court for the Southern District of Florida and I am in compliance with the additional qualifications to practice in this court set forth in Local Rule 2090-1(A). FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. By: /s/ Seth Lehrman Seth Lehrman FLBN 132896 Gary M. Farmer FLBN 914444 Brad J. Edwards FLBN 542075 425 North Andrews Avenue, Suite 2 Fort Lauderdale, Florida 33301 (954)524-2820 (954)524-2822 Fax EFTA00595519 MASTER SERVICE LIST CASE NO.: 09-34791-BKC-RBR Hon. Robert Carney (ret.), Special Master 2281 Saratoga Lane West Palm Beach, FL 33409 Jack Scarola, Esq. Searcy Denney Scarola Barnhart & Shipley 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Jack A. Goldberger, Esquire Atterbury, Goldberger & Weiss, M. 250 Australian Avenue South, Suite 1400 West Palm Beach, FL 33401 Phone: (561) 659-8300 Fax: (561) 835-8691 Fort Marianella Morales, Esquire Authorized Agent For Joining Creditors Avenida Francisco de Miranda Tone Provincial "A" Piso 8 Caracas, Venezuela (VIA CM/ECF and EMAIL) John H. Genovese, Esq. Robert F idely, Esq. Theresa M. Van Vliet, Esq. Genovese Joblove & Battista, PA Bank Of America Tower at International Place 100 S.E. 2nd Street, Suite 4400 Miami, Florida 33131 (VIA CM/ECF and EMAIL) Kendall Coffey, Esq. Coffey Burlington, Office in the Grove Penthouse 2699 South Bayshore Drive Miami, Florida 33133 (VIA CM/ECF and EMAIL) Joseph L. Ackerman, Jr. Esquire Fowler White Burnett, M. 901 Phillips Point West 777 S Hagler Drive West Palm Beach, FL 33401-6170 Phone: (561) 727-2423 Fax: (561) 802-9976 The Honorable Herbert M. Stettin, Trustee One Biscayne Tower Suite 3700 Two South Biscayne Boulevard Miami, Florida 33131 Alison W. Lehr, Esq. Grisel Alonso, Esq. Assistant United States Attorney 99 E. 4th Street, 7th Floor Miami, Florida 33132 Alison.Lehr@usdoj.gov Grisel.alonso@usdoj.gov (VIA CM/ECF and EMAIL) Jeffrey R. Sonn, Esq. Sonn & Erez, PLC Broward Financial Center 500 E. Broward Boulevard Suite 1600 Fort Lauderdale, Florida 33394 (VIA CM/ECF and EMAIL) Office of the US Trustee 51 Southwest First Avenue Suite 1204 Miami, Florida 33130 (VIA CM/ECF and EMAIL) EFTA00595520 John G. Bianco, Esq. John M. Mulli, Esquire Tripp Scott 110 Southeast Sixth Street Fifteenth Floor Fort Lauderdale. Fl. 33301 (VIA CM/ECF and EMAIL) Michael D. Seese, Esq. Hinshaw & Culbertson, LLP 1 E Broward Blvd Ste 1010 Ft Lauderdale. Florida 33301 (VIA CM/ECF and EMAIL) Internal Revenue Service Centralized Insolvency Operations Box 21126 Philadelphia, PA 19114 (Via U.S. Mail) Internal Revenue Service Special Procedures - Insolvency 7850 SW 6th Court Plantation, FL 33324 (Via U.S. Mail) .MS ial Asst. U.S. Attorney Box 9, Stop 8000 51 SW 1st Avenue, #1114 Miami, Fl 33130 (Via U.S. Mail) United Healthcare Dept. CH 10151 Palatine, IL 60055 (Via US Mail) Special Asst. U.S. Attorney IRS District Counsel 1000 S. Pine Island Rd., Ste 340 Plantation, FL 33324-3906 (Via U.S. Mail) Thomas Tew, Esq. Tew-Cardenas, LLP Four Seasons Tower 15th Floor 1441 Brickell Avenue Miami. Florida 33131-3407 (VIA CM/ECF and EMAIL) Conrad & Scherer, LLP 633 South Federal Highway Fort Lauderdale. FL 33301 (VIA CM/ECF and EMAIL) Honorable Jeffrey H. Sloman Acting U.S. Attorney 99 NE 4th Street Miami, Fl 33132 (Via U.S. Mail) Daniel Mink Ovadia Levy do Renato Watches, Inc 14051 NW 14th Street Sunrise, Florida 33323 (Via U.S. Mail) William George Salim, Jr. Moskowitz Mandell & Salim 800 Corporate Dr Ste 510 Fort Lauderdale. Florida 33334 (VIA CM/ECF and EMAIL) USI Attn: Anthony Gruppo 200 West Cypress Creek Road Suite 500 Fort Lauderdale, FL 33309 Anthony.gruppo@usi.biz (VIA EMAIL) EFTA00595521 The Honorable Eric H. Holder, Jr. Attorney General of the U.S. 950 Pennsylvania Avenue, NW Room 4400 Washington, DC 20530-0001 (Via U.S. Mail) Mark Bloom, Esq. John B. Hutton, Esq. Greenberg Traurig, LLP 1221 Brickell Avenue Miami FL 33131 (VIA CM/ECF and EMAIL) Robert D. Critton, Esq. Burman, Critton, Luttier & Coleman 303 Banyan Blvd., Suite 400 West Palm Beach. FL 33401 (VIA CM/ECF and EMAIL) Roth & Scholl Attn: Jeffrey C. Roth, Esq. Attorneys For Creditor Blue Capital Us East Coast Properties, 866 South Dixie Highway Coral Gables, Fl 33146 (VIA CM/ECF and EMAIL) Rogers, Morris & Ziegler, LLP 1401 East Broward Blvd Suite 300 Fort Lauderdale, FL 33301 (VIA CM/ECF and EMAIL) Arthur C. Neiwirth, Esq. One E. Broward Blvd., Suite 1400 Ft. Lauderdale, FL 33301 (VIA CM/ECF and EMAIL) Marc Nurik, Esq. 1 East Broward Blvd Suite 700 Fort Lauderdale FL 33301 (VIA EMAIL) BAST AMRON LLP SunTrust International Center One Southeast Third Avenue Suite 1440 Miami Florida 33131 (VIA CM/ECF and EMAIL) The Florida Bar Adria E. Quintela, Esq. Alan Anthony Pascal, Esq. Lake Shore Plaza II 1300 Concord Terrace, Suite 130 Sunrise, FL 33323 aquintel@flabar.org apascal@flabar.org (VIA CM/ECF and EMAIL) Micheal W. Moskowitz, Esq. 800 Corporate Drive, Suite 500 Ft. Lauderdale, FL 33234 (VIA CM/ECF and EMAIL) Francis L. Carter, Esq. Katz Barron Squitero Faust 2699 S. Bayshore Drive, 7th Floor Miami. Florida 33133 (VIA CM/ECF and EMAIL) Bradley S. Shraiberg, Esq. 2385 NW Executive Drive Suite 300 Boca Raton. Florida 3 431 EFTA00595522 Ira Sochet, Trustee Revocable Intervivos Trust of Ira Sochet do Phil Hudson, Esq. 200 South Biscayne Blvd, Suite 3600 Miami, Florida 33130 E-Mail: (VIA CM/ECF and EMAIL) Coquina Investments do Patricia A. Redmond, Esq. 150 West Flagler Street, Suite 2200 Miami, Florida 33130 E-Mail: (VIA CM/ECF and EMAIL) Michael I. Goldberg, Esq. Las Olas Centre - Suite 1600 350 East Las Olas Blvd Fort Lauderdale FL 33301 E-Mail: (VIA CM/ECF and EMAIL) LMB Funding Group do Robert C. Furr, Esq. 2255 Glades Road, Suite 337W Boca Raton, Florida 33431 E-Mail: (VIA CM/ECF and EMAIL) Lawrence A. Gordich, Esq. Melissa Alagna, Esq. SEGALL/GORDICH 801 Brickell Avenue, Suite 900 Miami, Florida 33131 Email: Email: (VIA CM/ECF and EMAIL) Broward County - Attn: Hollie N. Hawn, Esq. Government Center 115 South Andrews Avenue Fort Lauderdale, FL 33301 E-Mail: hhawn@broward.org (VIA CM/ECF and EMAIL) Henry S. Wulf, Esq. CARLTON FIELDS, •. 525 Okeechobee Blvd., Suite 1200 West Palm Beach. Florida 33401 E-Mail: (VIA CM/ECF and EMAIL) EMESS Capital, LLC do Bruce A. Katzen, Esq. 201 S. Biscayne Blvd., 17th Hoor Miami, Florida 33131 E-Mail: (VIA CM/ECF and EMAIL) Steven J. Solomon Esq. Gray Robinson, S. 1221 Brickell Ave, Suite 1600 Miami, Florida 33131 E-Mail steven.solomonegray-robinson. com (VIA CM/ECF and EMAIL) Peter F. Valori, Esq. DAMIAN & VALORI LLP 1000 Brickell Avenue, Suite 1020 Miami, FL 33131 E-mail: (VIA CM/ECF and EMAIL) Canon Financial Services, Inc. 158 Gaither Drive, #200 Mount Laurel, NJ 08054 (Via US Mail) CIT Technology Financing Services I, LLC 10201 Centurion Parkway North Jacksonville, FL 32256 (Via US Mail) Gibraltar Private Bank & Trust Company 10 EFTA00595523 (VIA CM/ECF and EMAIL) Leon County Tax Collector 315 S. Calhoun Street, Suite 210 Tallahassee, FL 32301 (Via US Mail) Miami-Dade County Tax Collectors 140 West Flagler Street, 14th Floor Miami, FL 33130 (Via US Mail) Palm Beach County Tax Collector ■. Box 3715 West Palm Beach, FL 33402-3715 (Via US Mail) THE LAW OFFICES OF GEOFFREY D. ITTLEMAN, 440 North Andrews Avenue Fort Lauderdale, Florida 33301 (Via US Mail) Carpenter & Berger, PL 6400 N. Andrew Ave, suite 370 Fort Lauderdale, FL 33309 (Via US Mail) Frank F. McGinn, Esq. Bartlett Hackett Feinberg, ■. 155 Federal Street, 9th Floor Boston, MA 02110 (VIA CM/ECF and EMAIL) Darol H. M. Carr, Esq. 99 Nesbit Street Punta Gorda. FL 33950 (VIA CM/ECF and EMAIL) Jane A. Bee, Esq. Blank Rome LLP 130 North 18th Street Philadel hia PA 1 103-6998 11 220 Alhambra Circle, Suite 500 Coral Gables, FL 33134 (Via US Mail) Inter-Tel Leasing, Inc. 1140 West Loop North Houston, TX 77055 (Via US Mail) Florida Department of Revenue 501 S. 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Florida 33301 (VIA CM/ECF and EMAIL) ASSOULINE & BERLOWE, 213 East Sheridan Street, Ste. 3 Dania Beach, FL 33004 Attn: Eric N. Assouline, Esq. (VIA CM/ECF and EMAIL) Steven J. Reisman, Esq. CURTIS, MALLET-PREVOST, COLT & MOSLE LLP 101 Park Avenue New York NY 10178-0061 E-mail: (Via Email and U.S. Mail) Turner P. Smith, Esq. CURTIS, MALLET-PREVOST, COLT & MOSLE LLP 101 Park Avenue New York. NY 10178-0061 E-mail: (Via Email and U.S. Mail) Heather L. Ries, Esq. Fox Rothschild, LLP 222 Lakeview Ave, Suite 700 West Palm Beach. 33401 MELAND RUSSIN & BUDWICK, 3000 Wachovia Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Attn: James C. Moon Es . Attn: Peter D. Russin Es . Attn: Michael S. 31 w idwick Es . (VIA CM/ECF and EMAIL) Gary S. Blake, Esq. 1499 W. Palmetto Park Rd, Suite 300 Boca Raton, FL 33486 gblake@Iglaw.net (VIA CM/ECF and EMAIL) Maryann Gallagher, Esq. CURTIS, MALLET-PREVOST, COLT & MOSLE LLP 101 Park Avenue New York, NY 10178-0061 E-mail: (Via Email and U.S. Mail) ILEANA CRUZ BONGINI, ESQ. STEARNS WEAVER MILLER WEISSLER ALHADEFF & SITTERSON, Coquina Investments Museum Tower, Suite 2200 150 West Flagler Street Miami, Florida 33130 (VIA CM/ECF and EMAIL) Lynn Maynard Gollin Gordon & Rees LLP Four Seasons Tower, 15th floor 1441 Brickell Avenue Miami, FL 33131 (VIA CM/ECF and EMAIL) 12 EFTA00595525 (VIA CM/ECF and EMAIL) Paul J. McMahon, Esq. Paul Joseph McMahon, M. 2840 S.W. Third Ave Miami Florida 3312 (VIA CM/ECF and EMAIL) Robert P. Avolio, Esq. Crossroads Corporate Center 3150 Brunswick Pike, Ste. 120 Lawrenceville. NJ 08648 (Via Email and U.S. Mail) Mark S. Shipman, Esq. 20 Batterson Park Road, Suite 120 Farmington. CT 06032 13 (Via Email and U.S. Mail) EFTA00595526