EFTA00613622.pdf

IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CIVIL DIVISION AG CASE NO. 502009CA040800XXXXMB Judge David F. Crow JEFFREY EPSTEIN, Plaintiff/Counter-Defendant, v. SCOTT ROTHSTEIN, individually and BRADLEY J. EDWARDS, individually, Defendants/Counter-Plaintiffs. PLAINTIFF/COUNTER-DEFENDANT JEFFREY EPSTEIN'S MOTION FOR CLARIFICATION REGARDING DISCOVERY Plaintiff/Counter-Defendant JEFFREY EPSTEIN ("Epstein") by and through undersigned counsel, hereby moves for clarification of prior court directives regarding a stay of discovery until the pleadings are at issue. The grounds for this Motion are as follows. I. Initially on March 30, 2011, this Court entered an Order staying the issuance of subpoenas directed to the Trustee in the RRA bankruptcy. At that time, the court stated the pleadings needed to be addressed and directed Epstein to file an Amended Complaint. 2. On July 13, 2011 at the hearing on Defendant Bradley Edwards' ("Edwards") Motion to Dismiss the Amended Complaint, this Court stated that it "want[ed] to get a complaint out there that withstands the motion to dismiss before we go into all these privilege issues." (Hr'g Tr. 7/13/2011 at 155). The Court has also expressed the need to get the pleadings at issue before addressing discovery objections and other discovery issues. EFTA00613622 Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Division AG 3. At the hearing on September 28, 2011 on Edwards' Motion to Dismiss the Second Amended Complaint, this Court reiterated that it wanted to get the issues in the pleadings resolved before addressing discovery issues. The Court also expressed its concern over the viability of Edwards' Counterclaim and wanted its viability addressed before hearing Edwards' Motion to Add a Claim for Punitive Damages. 4. Now that Edwards' Motion to Dismiss Epstein's Second Amended Complaint has been denied, Epstein wishes to proceed with some discovery directed to his Second Amended Complaint. 5. Epstein would like to address some limited privilege issues: (a) Edwards has claimed privileges relating to approximately 198 communications with a "Confidential Source." The law is settled that the privilege not to reveal the name of a confidential informant is "uniquely available to the government." See, e.g., Holman v. Cayce, 873 F.2d 944, 946 (6ih Cir. 1989) (and cases cited). Other than the cases which speak to the First Amendment privilege of reporters to protect their sources, there is no privilege for a private party with a confidential informant in civil cases. Therefore, Epstein would like to set for hearing a motion to compel the identification of Edwards' "Confidential Source." (b) The Privilege Log often does not identify the recipients of an alleged privileged communication other than "Confidential Source," "RRA Staff," and "RRA Personnel." Such identifications violate the requirements set forth in TIG Insurance Corporation of America - 2 - EFTA00613623 Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Division AG (TIG) v. Johnson, 799 So.2d 339 (Fla. 4'h DCA 2001). Consequently, Epstein would like to set a motion directed toward the sufficiency of the Privilege Log. 6. Epstein wishes to proceed with discovery of Edwards' alleged damages, but the Motion to Dismiss the Amended Counterclaim is pending, and Epstein is unclear whether those discovery requests should wait until that pleading is at issue. 7. Edwards has filed an Amended Counterclaim and a Motion to Dismiss is presently pending. Epstein respectfully submits that discovery issues which Edwards presently wishes to pursue need to wait until the Court determines if the Amended Counterclaim withstands Epstein's Motion to Dismiss. 8. Presently, Edwards seeks to re-depose Epstein. At the hearing on July 13, 2011, this matter was deferred pending getting the pleadings to issue. Given the areas of inquiry Edwards wants to address in a follow-up deposition based on the Amended Counterclaim, Epstein submits Epstein's deposition should be postponed until Edwards' Amended Counterclaim withstands a Motion to Dismiss, if it can. 9. Edwards wants to depose individuals who Epstein believes do not have information bearing on the issues as presently framed. Those individuals are Ghislaine Maxwell, Howard Rubenstein, Ava Cordero, and Alan Dershowitz, who Edwards claims have information regarding victim issues, which allegedly took place before the present litigation. The relevancy of victim issues and extent of discovery into victim issues need to be deferred until Edwards' Counterclaim withstands a Motion to Dismiss. - 3 - EFTA00613624 Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Division AG 10. Other potential areas of discovery may exist. Epstein requests clarification of what can be done now and what should wait until all the pleadings are at issue. 11. Epstein represents that this Motion is made in good faith and not for the purposes of delay. Epstein also represents that he has and will attempt to make an effort to resolve this Motion without the need of a hearing. WHEREFORE, the Plaintiff/Counter-Defendant Jeffrey Epstein requests clarification of this Court's prior directives relating to discovery before the pleadings are at issue. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via e-mail and U.S. Mail on this 4th day of November, 2011 to: Jack Scarola, Esq., Searcy Denney Scarola et al., 2139 Palm Beach Lakes Boulevard, West Palm Beach, FL 33409; Jack Alan Goldberger, Esq., Atterbury, Goldberger & Weiss, P.A., 250 Australian Avenue South, Suite 1400, West Palm Beach, FL 33401-5012; and Marc S. Nurik, Esq., Law Offices of Marc S. Nurik, One East Broward Boulevard, Suite 700, Fort Lauderdale, FL 33301. Respectfully submitted, Joseph L. Ackerman, Jr. Florida Bar No. 235954 FOWLER WHITE BURNETT, P.A. 901 Phillips Point West 777 South Easier Drive West Palm Telephone: Facsimile: Attorneys for Jeffrey Epstein, Plaintiff and -4- EFTA00613625 Epstein v. Rothstein and Edwards Case No. 502009CA040800XXXXMB/Division AG Christopher E. Knight Florida Bar. No. 607363 FOWLER WHITE BURNETT, P.A. Espirito Santo Plaza, 14th Floor 1395 Brickell Avenue Miami, Florida 33131 Telephone: Facsimile: Attorneys for Jeffrey Epstein, Plaintiff - 5 - EFTA00613626