EFTA00621488.pdf

Page 1 MEETING HELD BEFORE SPECIAL MASTER ROBERT CARNEY IN RE: IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Complex Litigation, Fla. R. Civ. Pro.1201 CASE NO. 50 2009CA040800XXXXMB AG JEFFREY EPSTEIN, Plaintiff, vs. SCOTT ROTHSTEIN, individually, BRADLEY J. EDWARDS, individually, and III., individually, Defendants. DATE TAKEN: TIME: PLACE: Tuesday, March 15, 2011 10:05 AM - 12:35 PM SEARCY DENNEY SCAROLA BARNHART & SHIPLEY 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 Lee Lynott, Registered Merit Reporter Registered Professional Reporter Certified Shorthand Reporter Hi-Tech/United Reporting, Inc. 1218 SE 3rd Avenue Fort Lauderdale, FL 33316 United Reporting, Inc. (954) 525- 2221 EFTA00621488 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: FOWLER, WHITE, BURNETT, la BY: LILLY ANN SANCHEZ, ESQUIRE JOSEPH ACKERMAN, ESQUIRE CHRISTOPHER KNIGHT, ESQUIRE One Financial Plaza - 21st Floor 100 Southeast 3rd Avenue Fort Lauderdale, Florida 33394 FARMER, JAFFE, WEISSING, EDWARDS, FISTOS & LEHRMAN, P.L. BY: BRADLEY EDWARDS, ESQUIRE 425 N. Andrews Avenue - Suite 2 Fort Lauderdale, Florida 33301 SEARCY DENNEY SCAROLA BARNHART & SHIPLEY BY: JACK SCAROLA, ESQUIRE 2139 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409 ALSO PRESENT: MARTIN WEINBERGER, via telephone United Reporting, Inc. (954) 525- 2221 EFTA00621489 1 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 3 THEREUPON, (The following meeting took place): SPECIAL MASTER CARNEY: We've got, it looks like, two matters right now. I have some suggestions, but certainly open to suggestions. One, we are meeting to take a look at the privilege log and see whether we have problems with the privilege log; and if we have problems, what needs to be done to correct the problems. Two, we have a Request for Sanctions and we need a resolution on the Request for Sanctions. It seems to me that probably the first thing on the agenda, because it certainly would play into either one, is a determination: Do we have a problem with the privilege log? And if so, what's the problem and what is there to correct it? So, why don't we begin with that. MR. SCAROLA: Before we get underway with that specific business. On the record, I want to renew our request to a stipulation that you be appointed as Special Master in the State Court proceedings. SPECIAL MASTER CARNEY: Response? United Reporting, Inc. (954) 525- 2221 EFTA00621490 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 4 MR. KNIGHT: At this time, let's see where all this goes. We haven't brought that under consideration with our client. We need to speak with him. MR. SCAROLA: Well, that request has been made repeatedly over an extended period of time and I think it is clearly an indication of the bad faith of Mr. Epstein that has been -- SPECIAL MASTER CARNEY: Actually, I believe that plaintiff had actually written a letter and agreed to that quite sometime ago. That was actually in one of the responses I think by Mr. Ackerman. MR. KNIGHT: Well, obviously, we've had these requests out since last July. They are properly before Judge Rey and properly before you at this point. It is not a decision that we need to make today. We believe we have good grounds on these TIG objections. It is close to what should have been accomplished over the last six, seven, eight months now. And so, we note Mr. Scarola's comment for the record. We want to address the two issues that are here today and we can address those other issues at a later time. United Reporting, Inc. (954) 525- 2221 EFTA00621491 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 5 MR. SCAROLA: And it is our position that those issues cannot be properly addressed unless and until there is a State Court ruling with regard to the discoverability of the information that has been requested which appropriately must proceed any requirement that a privilege log of any kind be submitted. SPECIAL MASTER CARNEY: What I would suggest, III viewing the determination of or the presentation of me as a Special Master in the State Court can be divided up into either initially yes, no. If the answer is yes, we still don't have duties yet within the State Court. Ultimately, it seems to me that probably the issue at this point, I don't think anyone looking back on Mr. Ackerman's letter. think that the letter had pretty much indicated a copy of this would certainly go to Judge Rey. Actually, I believe that part of the decision-making process in that letter was to Judge Rey or, excuse me, to Judge Crow. I don't think anyone is really disputing particularly that Judge Crow need be involved in some fashion or another because he is the United Reporting, Inc. (954) 525- 2221 EFTA00621492 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 6 presiding judge over the case. And so, these are things that historically there have been agreements, but we're not necessarily seeing fruition on the agreements. We get an agreement and that seems to be kind of the last we hear of it. But III not necessarily sure that I agree with what Mr. Scarola did. Right now we have to have a resolution as to what role Judge Crow would take vis-a-vis this matter as opposed to Judge Rey. But it seems to me it's easy enough to at least get to a stipulation that at least both are in play somewhat. It seems to me it's pretty hard to determine that Judge Crow isn't in play if he's the presiding judge. MR. KNIGHT: We just don't like creating delay by that for Judge Rey of which I think the different machinations that come from this proceeding that's been -- SPECIAL MASTER CARNEY: III not saying any delay -- MR. KNIGHT: We're not saying you are. If we entered into that stipulation now, I think we would do it right before Judge Crow, we would lose any momentum that we have right now for United Reporting, Inc. (954) 525- 2221 EFTA00621493 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 7 Judge Rey. We want to get on to the actual issues, the same ones we've been asking for. SPECIAL MASTER CARNEY: I agree completely on that. But M, again, not necessarily sure that we have a particular problem. The reason III saying that is when this went in front of Judge Crow, Judge Crow, basically, washed his hands of it and said it's in front of the Bankruptcy Court. Let the Bankruptcy Court decide it. It looks like that's exactly what's going to happen. The only issue that III seeing right now with respect to Judge Crow is there aught to be something in there that Judge Crow ratifies what the Bankruptcy Court judge does. Otherwise, we're left hanging in the wind. Whatever happens here is not binding at all on the State Court judge. The State Court judge can do whatever he wants. MR. SCAROLA: Respectfully, and maybe we're saying the same thing but in different ways, Judge Crow expressly ruled that he will make a determination as to what is discoverable in the State Court proceedings; that he deferred to Judge Rey for purposes of Judge Rey determining United Reporting, Inc. (954) 525- 2221 EFTA00621494 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 23. 22 23 24 25 Page 8 anything that was pending in the Bankruptcy Court without that having any binding impact upon his decisions with regard to what is discoverable in the State Court. The representations were made to Judge Crow at the time that he made that ruling that there was an independent basis upon which the discovery was being sought in the Bankruptcy Court, that is, that it was not only a State Court subpoena that was issued to the Trustee, but that there were independent discovery requests that were made in the bankruptcy proceeding upon which Judge Rey was proceeding. Now, I don't believe that to have been accurate, but those are the representations that were made to Judge Crow. And on that basis, Judge Crow said Judge Rey can do whatever he wants to but I, Judge Crow, am deciding what is discoverable in my case. That's where that stands. SPECIAL MASTER CARNEY: Which I think he absolutely has the authority to do. I have indicated from the very outset, because it is a State Court action and the final arbiter of that State Court action is Judge Crow, the one who is United Reporting, Inc. (954) 525- 2221 EFTA00621495 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 really the best one to resolve this in my view is and always has been Judge Crow. Judge Rey is doing it. Judge Crow has deferred to Judge Rey. All III interested in doing right now is putting Judge Crow in the loop in a fashion where Judge Crow can agree or disagree with whatever my findings are as a Master. Now, unless and until III appointed as a Master in the State Court, he can't do that. And as I say, that leaves us hanging in the wind at that point. I don't think he can on his own simply sua sponte say, III adopting the findings of the Special Master. I think that would create all kinds of appellate issues if we did that. MR. SCAROLA: Nor do I think that the plaintiff should be in the position of waiting to see what your rulings are and then deciding whether the plaintiff wishes to stipulate to those rulings as a recommendation in the State Court. The time to make that decision is now. And if they don't choose to make it, they don't choose to make it. But I want the record to be United Reporting, Inc. (954) 525- 2221 EFTA00621496 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 10 absolutely clear that we are offering to allow your rulings to be binding as rulings of the Special Master in the State Court proceeding as well as the Bankruptcy Court proceeding. We're willing to go so far as to -- SPECIAL MASTER CARNEY: Let me backup for just a second, because it's the "binding" that's the word that's causing a little bit of a problem for me. MR. SCAROLA: I understand and I was about to address that. (Telephone Rings) (WHEREUPON, an off-the-record discussion was had). MR. SCAROLA: The stipulation that we are offering is that you serve as Special Master in the State Court. We go beyond that and we will agree that we will waive any appellate rights that we might have, including appellate rights to the Circuit Court judge, and allow your rulings to be binding within the State Court proceeding. They can accept all or any portion of that stipulation or reject it in its entirety. SPECIAL MASTER CARNEY: III not necessarily United Reporting, Inc. (954) 525- 2221 EFTA00621497 Page 11 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sure Illiunderstanding precisely which way you're going. What 'IIIunderstanding the role is and where I see the problem right now, ordinarily, once I make my various findings and recommendations, I submit them to the judge who can give them a thumbs up or a thumbs down. The judge, generally, in the absence of an objection is pretty much bound by what I do. If we have an objection, the court, of course, rules on the objection. The difficulty that III seeing right now is, at the moment we're only going to Judge Rey, which means that -- And Judge Crow has said, I don't care what Judge Rey does. It's my decision. We end up with that problem right there. If we put Judge Crow in the loop, we still have a problem and the problem -- (Telephone Rings) (WHEREUPON, Martin Weinberger joins the proceeding already in-progress via teleconference): MR. WEINBERGER: Hello? MR. ACKERMAN: We're here, Marty. MR. WEINBERGER: Good morning. Thank you very much. And III sorry that I've disrupted United Reporting, Inc. (954) 525- 2221 EFTA00621498 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 12 anything by not calling in earlier. SPECIAL MASTER CARNEY: Do you want to go around the table so he knows who is here? MR. ACKERMAN: Yes. Joe Ackerman is here, Marty. MR. WEINBERGER: Good morning, Joe. MR. KNIGHT: Chris Knight. MR. WEINBERGER: Hi, Chris. MRS. SANCHEZ: Hi, Marty. Lilly Sanchez. MR. WEINBERGER: Hi, Lilly. MR. SCAROLA: Jack Scarola and Bradley Edwards. MR. WEINBERGER: Good morning to you both. SPECIAL MASTER CARNEY: And Robert Carney. MR. EDWARDS: Hi. SPECIAL MASTER CARNEY: As I had mentioned, the problem that III seeing if we have simply both judges copied, as long as we have both the judges making rulings, we have the possibility of inconsistent rulings. Therein, we have a problem. The solution I think, ultimately, is because it is a Judge Crow case and it's being handled in State Court and it's a pure State Court action, ideally, is to have the Special Master United Reporting, Inc. (954) 525- 2221 EFTA00621499 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 appointed in the State Court and then have Judge Crow actually be the one ruling on the objections, if there are any objections, but have the report go back with a copy to Judge Rey. Now, any issues that are exclusively Judge Rey issues for which Judge Crow would have no interest in would be in front of Judge Rey. But where there are State Court issues for which Judge Crow would ultimately make the final decision as to admissibility in court, as to discoverability, as to whatever, it seems to me the obvious choice is to have Judge Crow rule on those and not be in a position of a potentially dueling judges' orders. MR. KNIGHT: I understand what you've said, and I'll fill Marty in more on the part he missed. We'll get back to that. SPECIAL MASTER CARNEY: Let's take a look at the privilege log right now. We can come -- MR. SCAROLA: Let me just make sure that my position is clear. I agree with everything that you have said. Obviously, you can only be appointed as Special Master in the State Court proceeding upon stipulation of the parties. United Reporting, Inc. (954) 525- 2221 EFTA00621500 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 14 SPECIAL MASTER CARNEY: I agree. Actually, and by order of the court. It's still going to take a court order. MR. SCAROLA: Well, yes and no. Yes, it would take a court order for you to be appointed as Special Master to follow the proceedings that we have described. The parties are also free to agree to arbitrate these issues -- SPECIAL MASTER CARNEY: Oh, absolutely. MR. SCAROLA: -- to make your decision a binding arbitration decision with regard to the discovery of these documents. We are offering to do both. We are offering to have you appointed as Special Master in the State Court and to follow the proceedings that ordinarily are followed with regard to a Special Master's appointment where you report to the court. There is a possibility for objections being made. The court rules on those objections. Accepts, rejects or modifies the report of the Special Master. We agree to that procedure. We also go a step further. We are willing to allow all of these discovery issues to be resolved by binding arbitration. To have you as Special Master become the arbiter, the final United Reporting, Inc. (954) 525- 2221 EFTA00621501 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 15 arbiter of these discovery issues. If the plaintiff is, in fact, interested in the expedited resolution of these issues, the fastest way to get them resolved is to agree to that procedure. I don't think they've ever been interested in that. Their rejection of our proposal that you be Special Master in the State Court proceedings indicates they have no real interest in that. Their refusal to agree to have these issues arbitrated by you is a further indication that they have no interest in that. This is an abuse of process from beginning to end and all of these discovery proceedings are part of that abuse of the court's process. That's our position. Let them do with it what they want, but I want to be sure that this record reflects what we are willing to do. SPECIAL MASTER CARNEY: I am not necessarily sure that III agreeing one hundred percent with your analysis. I think, even if the parties stipulate, for me to be a binding arbiter would still require a court order. And the reason III saying that is, because III looking at it from the point of view of United Reporting, Inc. (954) 525- 2221 EFTA00621502 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 16 Judge Crow. If I were Judge Crow, the question is: Would I want somebody making decisions for me that go up on appeal with my name on them where illino part of the decision at all? III not necessarily sure that I would agree to that. MR. SCAROLA: There would be no appeal. If it's binding arbitration, there is no appeal. SPECIAL MASTER CARNEY: Well, ultimately, once the case goes up to the appellate court, let's assume just for the sake of argument that I make a ruling and I goof in my ruling. The question is: It eliminates from Judge Crow any ability to correct it. Ultimately, when it goes up on appeal he's the one who's appealed, not me. That's why III viewing where III in Judge Crow's position, whether it's binding arbitration or Special Master, I would like to sign-off on the order. MR. KNIGHT: Judge Carney, I heard Mr. Scarola the first time. I heard him the second time. I heard him the third time. The abuse of process here, we still haven't been able to get a proper privilege log since August. We want to move forward on that. We understand his United Reporting, Inc. (954) 525- 2221 EFTA00621503 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 17 issues and where he wants to go. I don't think arbitration is something we've even discussed, so we will consider that. Although, I think there is a bunch of problems that will come with that relative to appellate rights, et cetera, that would be before Judge Crow because we can't appeal your ruling to the 4th. We can appeal Judge Crow's. I don't want to get into that. I actually want to get into the merits of what this hearing is supposed to be today and not this smokescreen that's being pushed on us, because there are significant deficiencies in this TIG privilege log that we need to discuss. They're very important. It can put us in a position where at this point we'll need to start reviewing the documents. MR. SCAROLA: Let's get at it. MR. KNIGHT: So we need to get into it. SPECIAL MASTER CARNEY: Just before we go. Ultimately - and I do understand the defense position because this has been on the table in the past, apparently, agreed to by the plaintiff - the position is in the absence of following through on the agreement, it's United Reporting, Inc. (954) 525- 2221 EFTA00621504 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 18 ultimately waiting to see what the ruling is here. And if you like the ruling, you agree to it. And if you don't like the ruling, you don't agree to it. As I say, there is some merits to the position that probably aught be resolved before the court makes a particular ruling, but I can't compel resolution one way or the other. What I am advising is, without a resolution of getting in front of Judge Crow, all we're doing at this point is spinning our wheels. As I say, it's a State Court action and Judge Crow has already said, III not bound by whatever the bankruptcy judge does. In the absence of an agreement, this cannot be placed in front of Judge Crow as a fait accompli. So, I see really compelling reasons, legal reasons to go at least part way with what Mr. Scarola is saying. I see only upside and no downside. To do it without it, I see only downside and no upside. At any rate, having said that, let's proceed. Let's start I guess with the privilege log. MR. ACKERMAN: Your Honor, I would like to United Reporting, Inc. (954) 525- 2221 EFTA00621505 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 19 just add a couple of things before we proceed. First of all, this matter has been brought up without being properly noticed. Judge Crow has entered a case management order, which this is one of the items we have to discuss. It's not as simple as Mr. Scarola puts it, because there are issues as we've argued before that Judge Rey has jurisdiction over, including the order that we're here for now. That has to be addressed now because of the outstanding nature of the orders relating to the privilege log. We have other subpoenas that are going to go to the Trustee. The Trustee is under the jurisdiction of a Bankruptcy Court. Mr. Scarola, with all due respect, is inaccurate in relating what I said because, initially, when these matters came before Judge Rey there were other parties seeking records on adversary proceedings. But notwithstanding that, Judge Rey had entered an order stating that based on the fact that he had jurisdiction over the property of R.R.A.'s records that he has jurisdiction over that. United Reporting, Inc. (954) 525- 2221 EFTA00621506 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 20 At this point in time we're asking the court to rule on these two matters, asking the court to enter a recommendation and at that point in time the matter goes to Judge Rey. And I believe that's the time to address these issues, but it can't be done with a simple stipulation because there are other issues that have to be addressed for future subpoenas and whether or not you're going to be appointed on anything beside that. That's something that we haven't discussed or resolved, and I say that with all due respect to Your Honor. But right now, your appointment is for these documents and this subpoena. I believe that in order to accomplish what Mr. Scarola is saying or accomplish, rather, what Judge Crow is saying for a review, ultimately, on the issues that have to come before him, those issues have to be taken into consideration. They can't be done today. They haven't been able to be done before because we haven't addressed them. I think the appropriate time is to do it as part of the case management and not today. MR. SCAROLA: really not sure what Mr. United Reporting, Inc. (954) 525- 2221 EFTA00621507 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 21 Ackerman just said, but if what he has said is he doesn't want to proceed today, he wants to wait and let Judge Crow do this MR. ACKERMAN: No, that's not what saying. illitalking about your suggestion -- MR. SCAROLA: This matter has not been properly noticed. What is the matter -- MR. KNIGHT: He's talking about what you just brought up. MR. SCAROLA: What is the matter that has not been properly noticed? MR. ACKERMAN: What you started this conversation with today, that's what III talking about. Your request for a stipulation, that's not before us today. MR. SCAROLA: Well, I don't know what procedure must be followed to offer to enter into a stipulation. III not aware that I've got to file some written document or give some period of time, notice in advance of raising that issue. I have offered this stipulation repeatedly. It has repeatedly been accepted informally and then rejected. No confirmation has ever been made. I understand that it's been rejected today. United Reporting, Inc. (954) 525- 2221 EFTA00621508 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 That's fine. I want it to be clear on the record that that continues to be our position. It will always continue to be our position. I always expect that we will get nothing but delay from the other side. That's okay, too. So, if the matter that has not been properly noticed is our offer of a stipulation, I don't know what that means, let's get on with whatever Mr. Ackerman believes has been properly noticed. SPECIAL MASTER CARNEY: Let's go back to the privilege log at this point and the complaints with the privilege log. Let's see if we have an issue with the privilege log. And if we do, what it is and what needs to be done. MR. ACKERMAN: Your Honor, we filed an extensive memorandum that summarizes, first, the requirements of a privilege log and where, specifically, the privilege log is deficient. While we're on the subject of delay, a proper, legally sufficient privilege log was due on January 31st. One was not presented. It was, basically, a privilege log that listed several thousand documents with one entry to apply to all of them. United Reporting, Inc. (954) 525- 2221 EFTA00621509 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 We were before Your Honor again on February 16th. Mr. Edwards, Mr. Farmer and III. were given the opportunity to prepare a second privilege log that would comply with the TIG requirements. We received that second privilege log, and that's the one we're here before Your Honor. The case law is abundantly clear that in order for a party that seeks documents claimed to be privileged, they must receive a log that is complete, adequate and defines the relationship of the parties so that they can determine whether a valid privilege has been asserted. In this case throughout the entire log there is no identification of the parties or their capacities, so we cannot determine whether or not they're a part of Mr. Edwards' law firm or whether they're outside it. And I believe the court had even at one point thrown a suggestion out there to prepare some sort of master list to identify that. And while we may not have stated that that would have complied with the cases, the fact is, they have done nothing after being United Reporting, Inc. (954) 525- 2221 EFTA00621510 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 24 given two opportunities to prepare a privilege log. Under the cases that we've cited, particularly, the TIG case and the Century case, the court is entitled if it finds it appropriate, which we're asking it to do, to determine a waiver. What I would like to do is go through the specifics of it. The privilege must provide sufficient information to enable the parties to evaluate the applicability of the claimed privilege. With regard to the attorney-client privilege, we listed the elements that have to be shown. We have to be able to see who the holder is. There is absolutely no identification as to which client they are claiming the privilege for. We have to determine whether the person to whom the communi -- SPECIAL MASTER CARNEY: Don't we only have a single client in this case? MR. ACKERMAN: No. They have made the claim of privilege on behalf of three, three potential victims. United Reporting, Inc. (954) 525- 2221 EFTA00621511 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 25 SPECIAL MASTER CARNEY: Okay. MR. ACKERMAN: And now there are two additional claims that they're making that I suspect they're going to claim at least a work-product privilege on. So, we cannot identify whether the privilege has been appropriately invoked, because they haven't identified 1 of 5 possible clients that could be the holder of the privilege. There has to be an identification if that person to whom the communication is made is a member of the Bar or their subordinate. We cannot tell that from the privilege log. We have to know that it was, in fact, in connection with the rendering of legal services, it wasn't done in the presence of other outside strangers. As far as this privilege log is concerned, as it relates to the attorney-client privilege, since we do not have any capacities described in terms of the client, we do not know what the specific purpose -- They can state the general purpose without describing it and revealing any confidentiality. We cannot know what their role is in relationship to the confidentiality in order for them to establish an attorney-client United Reporting, Inc. (954) 525- 2221 EFTA00621512 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 18 19 20 21 22 23 24 25 Page 26 privilege. With regard to the work-product privilege, that privilege is divided into two parts. It's a fact work-product privilege, which relates to information obtained during and in anticipation of litigation. And then there is the privilege that relates to the attorney's mental thoughts and impressions. Under almost all circumstances, the thoughts and impressions of a lawyer are completely privileged as work-product. Under certain circumstances, upon the demonstration of need and upon the demonstration of inability to obtain facts from other sources, fact work-product can be obtained from the party requesting the information. In this instance there is no effort whatsoever to determine or to state whether the privilege claimed to be work-product is fact or work-product. III sorry. Fact, work-product or opinion work-product. Now, I've given the court the cases in there. The case law requires particularized findings in support of your determination as to whether or not they are fact or opinion United Reporting, Inc. (954) 525- 2221 EFTA00621513 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 27 work-product. You're not going to be able to do that nor are we going to be able to make a claim unless that distinction is made. We also, respectfully, direct your attention to the sheer number of people identified who received e-mails from Edwards where no objection is made on the basis of joint defense but only work-product. They haven't established that those people are within the litigation team or the people that are entitled to receive the work-product. Because if he sends information out to third parties that aren't part of his team, we're able to argue that that's a waiver of the work-product privilege without knowing their capacity, without knowing the fact that they're part of the litigation team. There is at least over 20 of those where he's failed to establish who they are. In the pooled joint defense or common litigation interests there are predicates for establishing that. There may be attorneys on there where he's claimed joint defense privilege, although there is no claim of defense against the plaintiffs that's being United Reporting, Inc. (954) 525- 2221 EFTA00621514 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 28 made, but there's a predicate that needs to be established as to who the person is, what the purpose of the joint litigation or common interest was to be, and that case is requiring matters cited and there is no effort at all to break those up. In general, because the document is discussed among participants or transferred among participants in a joint common interest agreement, it doesn't make it work-product if it's not privileged to begin with. For example, there are communications relating to conversations with U.S. Attorneys and FBI Agents which under no circumstances have any privity with the joint defense. So passing it on, particularly coming from them to these agents, certainly is not a work-product privilege. There has to be an establishment, particularly in the instance where they have identified U.S. Attorneys and FBI Agents, as to how that is any type of privilege, because the government does not participate in nor can they as a party in a civil proceeding absent a notice of being filed and particularly in these cases. United Reporting, Inc. (954) 525- 2221 EFTA00621515 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 29 They have listed confidential informants. Now, the case law that we've cited allows the government to withhold a confidential informant's identity at least for a certain period of time. But if that confidential informant has material evidence relevant to the defense of the case then a defendant can get it. There are no cases at all establishing a confidential informant privilege in the civil arena. There is no comparable purpose to be served and there is no legal basis for claiming that type of privilege. Here, the defendants don't claim an informant privilege, which is the one that exists in the criminal area, but they claim the privilege of a confidential source. There is no case law at all that indicates that that is a legal privilege under Florida law, under the Florida Evidence Code that deals with privilege. And just because someone is named a source doesn't make communications from that person to the lawyer privileged or any documents that are transmitted in that fashion. So unless this confidential source is identified to be a lawyer or an investigator United Reporting, Inc. (954) 525- 2221 EFTA00621516 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 2.4 25 Page 30 that's part of Mr. Edwards' litigation team then those are facial waivers of the work-product or any other privilege that's claimed, because they are clearly third parties. And the lack of identification of those people clearly makes those impossible for us to tell. And if they are claiming them to be, for example, in the case of the FBI Agents or the U.S. Attorney, those are clearly third parties. There is also a claim for privilege based on protective privacy rights. They haven't identified any specific privacy right or described the person whose privacy interests are at stake. They haven't identified any of the people that are claiming the privilege in other aspects as well. But here, there can be no valid privilege raised to protect a generic privacy right. Under Section 90.501 of the Florida Statutes it lists the privileges that apply. Absent the establishment of those privileges, any document that is requested should be produced. I just want to add one thing that was brought up earlier. Mr. Scarola has argued that United Reporting, Inc. (954) 525- 2221 EFTA00621517 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 31 there has been no determination on the relevancy of this subpoena. I submit to you, in prior memorandums this issue has already been addressed and you mentioned it at the last hearing. When this subpoena went out to the U.S. Trustee in April, Mr. Scarola asked for copies. There was no objection made at that time at the time the subpoena was sent out. So, it's our position the issues of relevancy are not properly before you on this proceeding. But with regard to the privacy, there is no reason -- there is no case law that extends the right of privacy to the issues that are set forth here. They haven't claimed why it's private. They haven't claimed who's stating it's private. And we contend that those are facial waivers to the extent documents rely only on the privacy right. Now, we've argued and I've given the court a lengthy list of cases that it settled that the failure to supply an adequate privilege log results in a waiver of the privilege under Florida or Federal law. There is a specific case that I cited, Century Business Credit Corp. United Reporting, Inc. (954) 525- 2221 EFTA00621518 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 32 It's in the brief and I have a copy of it. In that case the 4th District allowed a waiver to be found because the log was not only months late, but also completely inadequate. The citation for that in my brief and for the record is: Century Business Credit Corporation vs. Fitness Innovations and Technology, 906 So.2d, 1156, Florida 4th DCA, 2005. As I've indicated to you before, Mr. Edwards, Farmer & Jaffe and M. have had the opportunity for the last, you know, from the time the initial orders and documents were provided, and certainly by January 31st, to prepare an adequate log. We are now six weeks beyond that and still do not have a log that allows us to identify meaningful objections with sufficient detail to comply with the requirements of Florida Rules of Civil Procedure 1.280, as well as the TIG case and the Century Business case so that we can make appropriate objections on this. As a result of this we're asking the court that, because no less than four orders directing Edwards, et al. to prepare this privilege log United Reporting, Inc. (954) 525- 2221 EFTA00621519 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 33 have been complied with and since the last two do not remotely meet the TIG requirements, we're asking the court to enter a finding that the privileges have been waived. Your Honor, on Page 83, if you need to see the log. MR. KNIGHT: These are just some examples. MR. ACKERMAN: To give you an example, if you look at Page 83, it says Brad to source. It doesn't say who the source is. It's claimed within the work-product privilege. We need to have the identity to know if there is a waiver. If you go to Page 85, you have Brad to R.R.A.. We don't know who the attorney is, whether it's Rothstein, whether it's someone in the firm based on the investment team that was attempting to arrange these investments through third parties. There's a similar problem on Page 86 for Rothstein on e-mail regarding causes of action. We believe that that would be work-product only if it relates to a pre-existing client. On Page 87 and 138, we have Jenne to attorneys in Rothstein's firm. If Rothstein We don't know who that's going to. We've United Reporting, Inc. (954) 525- 2221 EFTA00621520 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 34 established in deposition that Mr. Jenne brought boxes of the 1M file to at least two individuals who were interested in investing in Mr. Rothstein's ponzi scheme. If Mr. Jenne is sending the e-mail to Rothstein, without knowing what the subject matter is, it could be related to the scheme or it could be to Mr. Edwards relating to the case or the scheme. Page 100, there's a listing for Coffey. If he's not an attorney for R.R.A. and he's not in the firm, then there may be a waiver of the privilege. We have Page 136 where there's an e-mail or a letter from Brad to R.R.A. relating to Clinton. We don't know which client that is. We believe that part of the scheme to entrap investors to this ponzi scheme was to subpoena people like Bill Clinton and Donald Trump. And there is testimony from Dean Kretschmar that talks about a log book of people that were on Mr. Epstein's plane, including Mr. Clinton. Page 118, there's a reference to Carl Linder. He appears to be involved in the transactions involving the scheme with these United Reporting, Inc. (954) 525- 2221 EFTA00621521 1 2 3 4 5 6 7 8 9 10 11 1 2 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 35 outside investors, but we don't know who he is, and he appears to be receiving e-mails from Brad Edwards relating to this case. Page 155 shows the FBI as a source. That's not work-product. And if there is information coming from Brad Edwards to the FBI then that's a waiver of the work-product privilege. Those are some of the examples upon which we're relying. But the court can see by an examination of the log in its entirety there is absolutely no identifying of capacities as to who the people are, there is no identifying as to who the client is for whom the work-product privilege, attorney-client privilege, privacy privilege, et cetera, has been claimed. SPECIAL MASTER CARNEY: Response. MR. SCAROLA: Thank you, very much. There are multiple fundamental defects in the arguments that have been advanced on behalf of Mr. Ackerman's child-molester client. MRS. SANCHEZ: Really? SPECIAL MASTER CARNEY: Let's start at this point by eliminating the characterization of clients. MR. SCAROLA: Well, that's a matter of United Reporting, Inc. (954) 525- 2221 EFTA00621522 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 36 established record. He's pled guilty to molestation. SPECIAL MASTER CARNEY: That may be, but it doesn't serve any purpose here. MR. SCAROLA: There is no privilege log required until discoverability is first determined. Gosman, the 4th DCA case that Your Honor has cited repeatedly in communications to the parties, expressly holds that a predicate to any requirement for the submission of a privilege log is a determination of discoverability. What Mr. Epstein's lawyers have argued is that a subpoena was issued to which no objection was raised at the time of the issuance of the subpoena. Under the unique circumstances of this case, it must be remembered that Mr. Edwards had no access to those documents. The documents were within the possession and control of the Trustee. Mr. Edwards didn't know what the documents were, didn't know what the contents of the documents were and had every right to wait until the time of the deposition and examine documents on a document-by-document basis and raise his United Reporting, Inc. (954) 525- 2221 EFTA00621523 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 37 objection to discoverability when the documents were in front of him. He had no ability to assert objections in advance of having access to the documents. Once he obtained access to the documents, clearly, he has persistently and consistently objected to the scope of the discovery sought. He has argued that much of the discovery sought is impermissible, beyond the scope of appropriate discovery for many reasons before we ever get to privilege issues. It is our position that while we have complied with the Bankruptcy Court's direction to prepare a privilege log, the direction to prepare a privilege log is at odds with state law as expressly set out in the Gosman case by the 4th District Court of Appeals. SPECIAL MASTER CARNEY: Let me pause here for a second, because I have a couple of questions. I think an argument can be made that Mr. Edwards had several choices: He could make an objection that it's overbroad, in which case I would agree with you. If there was an objection overbroad, that stops everything until that objection is ruled on. Or, he can make a United Reporting, Inc. (954) 525- 2221 EFTA00621524 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 38 request for a protective order claiming attorney-client privilege, a separate request. The law actually is gray with the protective order. There is a series of cases that say they, too, also have to be resolved prior to proceeding forward. But there's some case law that also indicates as long as only privilege is raised then it may require the necessity of the privilege log. And that's the issue that III looking at right now, because not aware that Mr. Edwards made an overbroad objection. It's my understanding that - because I would agree totally, that stops it - it's a privilege log objection. As I say, a privilege log is gray. Excuse me, a protective order is gray. Under the Evidence Code, and I've examined that very carefully, the cases go in both directions. They're all over the place on that. But as long as the only thing that is being raised, if it is not an overbreadth objection, as long as it is only being raised that it's attorney-client work-product then III not sure there is a good way to resolve it without a privilege log. United Reporting, Inc. (954) 525- 2221 EFTA00621525 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 39 MR. SCAROLA: The point that attempting to make here is that the cases that address this issue address it in circumstances where the objecting party has possession, custody or control of the documents. He knows what the documents are. He can look at them and he can decide which of them are subject to relevancy and materiality objections, which of them impose an undue burden, which of them may be privileged, and he can focus his objections based upon a knowledge of the documents themselves. SPECIAL MASTER CARNEY: And MI not in disagreement with that. But if we track a little of the history of this, the way this came about, originally, Judge Rey entered an order. At least in my view the order was just patently defective on its face. The order had directed me to produce a privilege log. There were a variety of issues with the order. I had made a request to Judge Rey that we need to clarify that order and we need to modify that order. We've got problems with it. Judge Rey agreed. A second order was entered. Under the terms of the second order, which is United Reporting, Inc. (954) 525- 2221 EFTA00621526 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 40 relatively in line with what we're doing right now because there was still a third order, but at this point documents were produced to the defense. Now, we ended up with another problem. The documents that the Trustee gave to the defense were not the same documents that the Trustee necessarily gave to the Special Master. Some of the documents that were given to the defense were corrupted and not able to be read. That caused still another delay, actually, not occasioned by the defendant at that point, that was occasioned actually by the Trustee. It was redone. We did a new document based on entirely what the Special Master got. So that was what we were all traveling under. I gave them my copy, they made their copy. But at this point at least, I believe we were in October, the defendant had the documents. And so what III viewing, if I accept that he may not be able to make a good objection until he has the documents and sees what the documents are, then, III not necessarily sure I disagree with you on that. Nevertheless, there was not an objection United Reporting, Inc. (954) 525- 2221 EFTA00621527 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 41 raised on overbreadth. The overbreadth objection under the case law normally stops the privilege log, but a protective order based exclusively on attorney -client privilege may not. That, again, case law goes both ways on that issue. MR. SCAROLA: I understand that concern. But what has consistently been overlooked is the fact that this entire proceeding in the Bankruptcy Court was an attempted end around objections that had already been filed. The first effort to obtain these documents was a production request directed to Mr. Edwards in the State Court proceeding to which we filed relevancy objections, overbreadth objections and a variety of other objections. SPECIAL MASTER CARNEY: III not sure I can bootstrap that onto this. I think each request ultimately requires its objection. As I say, III somewhat of the view at this point this one is gray, because there was not a direct overbreadth objection that was filed on this. I think certainly at some point that objection has to be raised or waived. Under the rules it would have been raised United Reporting, Inc. (954) 525- 2221 EFTA00621528 1 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 42 within 10 days or 30 days, I've forgotten exactly which, from the issuance of the subpoena or from the notice of the subpoena. But again, accepting that he doesn't have the documents and doesn't know what's in the documents at this point, what they are, again, III not sure quite as troubled by that. But as I say, we still get to the question: How does he object to it? Because the objection was only a privilege objection. I think there is a pretty fair argument that could be made at that point that it waives the overbreadth objection and what we're left with is a privilege objection, which would require a privilege log. MR. SCAROLA: I have multiple responses for that. The first is that, Gosman tells us how we deal with circumstances where we're in gray areas. And what Gosman explicitly holds is that an implied waiver of privilege is not favored in Florida law. There must be an expressed waiver. There, clearly, has been no expressed waiver under these circumstances. But let's move on from procedure to substance, if we could. This is not a United Reporting, Inc. (954) 525- 2221 EFTA00621529 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 43 circumstance where an adverse party seeking discovery makes the determination of the appropriateness of a privilege objection. That determination is to be made initially by you and subsequently by whichever judge or judges have to make that determination. The issue has got to be: Have you been provided with sufficient information in order to make those determinations? T-I-G addresses the situation where a privilege log is provided production of documents. here is one where we have in lieu of the The situation we have turned over the documents themselves for in-camera inspection. They're available to you. You can look at them. We have told you to turn over anything and everything that you think is relevant, material, not privileged by attorney-client privilege, not work-product. Give it to them. You don't need a privilege log where the document is described, because you have the document. You don't need a privilege log that tells you who the author of the document was, because you have the document and it identifies who the author was. You don't need a privilege United Reporting, Inc. (954) 525- 2221 EFTA00621530 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 44 log that tells you to whom the documents were directed, because the documents tell you to whom they were directed. Every inadequacy that they have described in the privilege log is overcome by the fact that we have voluntarily made the documents themselves available and are prepared to answe_ whatever questions you may have relating to those documents during the course of an in-camera inspection, if you determine that that's what needs to be done. SPECIAL MASTER CARNEY: III not -- Let me pause here for a second, because I'm not sure you and I are on the same page on this. What 'IIIunderstanding is, the procedure that seems to be set out as the appropriate procedure on a privilege log issue is: Once the privilege log has been filed, there is a hearing. It's not an in-camera inspection at that point. It is a hearing where the other side challenges, if they will, the privilege. What their position is is, they can't challenge it without more information. For example, the memo to confidential source. They can't challenge that without the United Reporting, Inc. (954) 525- 2221 EFTA00621531 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 45 information as to whether there would be a privilege or whether that's something that falls outside of the privilege, because it's a disclosure. MR. SCAROLA: We are on the same page, because I agree with you that the standard procedure is: First, the preliminary determination as to whether the documents are discoverable, if not, privileged. Then the filing of a privilege log as to discoverable material that is claimed to be privileged. That log identifies documents with sufficient particularities so that the parties seeking the discovery can challenge the assertion of privilege and then an in-camera inspection to make a determination after the challenge is raised as to whether the challenge is or is not valid. What I am suggesting to you is, we have voluntarily skipped ahead and provided everything for an in-camera inspection which we would ordinarily not be obliged to do. And because we have waived our right to have the defense establish a prima facie showing for an in-camera inspection, the inadequacies that they United Reporting, Inc. (954) 525- 2221 EFTA00621532 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 46 are arguing exists in the privilege log become absolutely irrelevant. The documents are there for a determination as to whether any of them are privileged. And if there is any questions that arise with the documents in front of you as to whether they are or are not privileged or otherwise discoverable, we're prepared to respond to those questions. We have met our obligation by voluntarily producing the documents for in-camera inspection without putting the parties seeking discovery to the burden of establishing some prima facie basis for the in-camera inspection. That's the whole purpose of the privilege log, so that they have a basis to challenge the assertion of privilege and to require that certain documents be inspected in-camera. We've waived it. We've given you everything. I don't know that there is anything more, certainly, that we are obliged to do. SPECIAL MASTER CARNEY: Just so we're clear. Actually, in terms of the Bates Stamp documents, I still don't have the Bates Stamp documents. I've never had the Bates Stamp documents. MR. SCAROLA: They are available. They are United Reporting, Inc. (954) 525- 2221 EFTA00621533 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 47 available. We've offered them before, we'll offer them to you again. Review them. Whatever you think is discoverable, give it to them. That's the bottom line. All of their objections, their T-I-G objections are based upon a procedure that simply does not apply under these circumstances. SPECIAL MASTER CARNEY: Just one moment. Let me be sure MIL understanding exactly what you're saying here. going to use, as an example, the confidential source. What you're saying is that, out of the 15,000 statements that are listed here, there are various objections that are raised to various entries. Addressing specifically the confidential source entry, that at this point the next step would be an in-camera inspection for the court to determine whether the confidential source actually meets a privilege or not a privilege. What III understanding the reason for an in-camera inspection would be, so that there wouldn't be a release of the name of the confidential source until such time as the court United Reporting, Inc. (954) 525- 2221 EFTA00621534 1 2 3 4 S 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 48 makes that determination. MR. SCAROLA: The legal argument has been made that there is no privilege in civil litigation to protect the identity of confidential sources. INgoing to get to that argument. They have cited the cases that support the fact that confidential source information is work-product information. It's the work-product privilege that applies. There is no confidential source privilege. There is a work-product privilege that covers the identity of persons who are providing information that is not subsequently going to be used at trial. If I may, III going to address that issue and I would be happy to -- SPECIAL MASTER CARNEY: Okay. MR. SCAROLA: Yes, you have the document. You know what the document says. You can make a determination as to whether it is covered by the work-product privilege or it is not covered by the work-product privilege based upon your review of the document in your in-camera inspection of the document. SPECIAL MASTER CARNEY: Before we get to that, let's cover a couple of areas right now United Reporting, Inc. (954) 525- 2221 EFTA00621535 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 49 that are raised by the plaintiff. One, plaintiff is indicating that there are three potential sources who could assert the privilege and there aught be some clarification in the privilege log as to which of the sources is asserting the privilege. MR. SCAROLA: Why? SPECIAL MASTER CARNEY: Well, that's a MR. SCAROLA: If it is a client of Brad Edwards and a claimant against Mr. Epstein, why must Brad Edwards identify to the defense which client it is? Maybe it's a client who hasn't yet filed a claim against Mr. Epstein. Why should Mr. Epstein be entitled to know the identity of that person who is asserting an attorney-client privilege? And this brings us to what I think is a very important and fundamental point here: The privilege belongs to the client; it does not belong to Mr. Edwards, it does not belong to R.R.A., it does not belong to the Trustee. Mr. Edwards, R.R.A., Mr. Rothstein, the Trustee have no ability to waive a privilege that does not belong to them. Every case that has been cited by opposing United Reporting, Inc. (954) 525- 2221 EFTA00621536 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 50 counsel where there has been a waiver of privilege found for failing to provide an adequate privilege log or otherwise comply with some discovery obligation, every case has been a case in which the failure was attributable to the client. The discovery is sought from a litigant who is the client. The client fails to meet the client's obligation and a waiver is found as a consequence of the client's failure to meet the obligation to provide an appropriate log. The privilege belongs to the client. The client can waive the privilege. And failing to comply with discovery obligations, some courts have found in particular circumstances where it has been particularly egregious, constituted a waiver of the client's privilege. Nothing Bradley Edwards does can waive the client's privilege. It can't waive III.'s privilege. It can't waive the privilege of any of the other victims who he represents or has represented. That privilege belongs to them. In order for there to be a waiver of the privilege, they must be the ones who by their actions or inactions or misconduct have waived United Reporting, Inc. (954) 525- 2221 EFTA00621537 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 51 the privilege. SPECIAL MASTER CARNEY: That may be a argument for a little bit later down the road. The issue that I'lltrying to focus in on now is a narrow one: Whether we have a problem with the log or whether we don't have a problem with the log. MR. SCAROLA: Well, part of the argument that has been made is, because there is a problem with the log there has been a waiver of privilege. SPECIAL MASTER CARNEY: Well, that's what they're suggesting as a sanction at this point. But right now, III not dealing with that issue at the moment. What IIIdealing with is: Do we have a problem with the log at all or do we not have a problem with the log? MR. SCAROLA: Obviously, my primary argument in that regard is: You have all of the information that you need to make a determination with regard to privilege. That's the purpose of a privilege log, that's the thrust of T-I-G; to give an independent finder of fact and law the ability to be able to make the determination ultimately. United Reporting, Inc. (954) 525- 2221 EFTA00621538 1 2 3 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 52 The procedure that is outlined usually involves a shifting of burden to the party seeking discovery after the privilege has been asserted to show some prima facie basis to overcome the privilege or to challenge it, and then an in-camera inspection. We've given it to you. Conduct an in-camera inspection. Give them whatever you think may be discoverable. The other objection that they have raised is that we have asserted in our privilege log a right to privacy that they contend does not exist. The point in their memo is, there is no right of privacy that protects against any discovery. They are absolutely wrong about that. This is the Florida Supreme Court, former Justice Rosemary Barkett, speaking for the court. The case is Rasmussen vs. South Florida Blood Service. If you turn to Page 535 of the opinion, I have highlighted the relevant language. You can read it faster than I can read it to you, so I won't bother reading it to you. It's highlighted and copies were provided to opposing counsel as well. Florida law unquestionably recognizes a United Reporting, Inc. (954) 525- 2221 EFTA00621539 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 53 right to privacy and requires that the trial court balance the right of privacy against the right to discovery. And to the extent that a right of privacy has been asserted in this case - again, you have the documents - you know what their content are. You have an ability to be able to waive the right of privacy that has been asserted against the need for discovery in this abuse of process case. And if you determine that the right of privacy is outweighed by the need for the discovery of any of those documents, you have the ability to order that they be turned over. An additional argument that is made, that there are documents as to which we have claimed a joint defense privilege that are not covered under the terms of a joint defense privilege. As I believe opposing counsel recognizes what is often referred to as the joint defense privilege is really a common interest privilege. The law recognizes the fact that persons with common interests are entitled to share information in a privileged and confidential way regarding the advancement of that common interest against a common adversary. United Reporting, Inc. (954) 525- 2221 EFTA00621540 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 23. 22 23 24 25 Page 54 All of the requirements for the application of the common interest privilege are met under the circumstances of this case both with regard to the common interests that were shared by lawyers who were simultaneously prosecuting identical claims against Mr. Epstein; there was an express agreement among counsel that information shared among them concerning Mr. Epstein would be kept confidential; there were regularly-scheduled conferences among counsel for purposes of sharing that confidential information; and the appropriate predicate exists to guard that information against discovery in matters that are still ongoing against Mr. Epstein. The same holds true with regard to the common interests that were shared between governmental prosecuting authorities and those prosecuting civil claims arising out of identical conduct by the same defendant in both the civil and the criminal proceedings. The common interest existed. The agreement existed that information would be shared confidentiality. Information was shared confidentiality with a reasonable expectation of United Reporting, Inc. (954) 525- 2221 EFTA00621541 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 55 privacy. The law cited by opposing counsel recognizes the fact that that common interest is sufficient to support an assertion of privilege. If you decide otherwise, you have the authority to decide otherwise. You have the documents. You can look at them. You can make that determination. Much of what is argued in this memo seeks to add significant requirements to the elements that are necessary in a T-I -G log, privilege log. And even if those elements were to be added, the in-camera production of the documents satisfies those added elements, but they are not appropriately imposed under T-I -G or any other authority that has been cited by opposing counsel. I think that I have covered the points that Mr. Ackerman made. If there is something that I missed, I would be happy to address it. MR. ACKERMAN: May I respond, Your Honor? SPECIAL MASTER CARNEY: Yes. MR. SCAROLA: One thing I might add. Also, with regard to the common interest privilege, one of the elements that is recognized in cases United Reporting, Inc. (954) 525- 2221 EFTA00621542 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 56 that have been cited by the defense, excuse me, by Mr. Epstein's lawyers is an agreement to pool expenses. Such an agreement, in fact, existed and we're prepared to support that by testimony. I think that completes my response. MR. ACKERMAN: Your Honor, I briefly want to address some of the things that Mr. Scarola talked about. We have been through this even at the last hearing. I have a copy of the transcript, if you need it. At the last hearing we had, we had the same issue about overbreadth and whether it's relevant, whether it's determined, and you addressed it. SPECIAL MASTER CARNEY: Let me cut straight to the chase for a second. What III ultimately understanding - and III paraphrasing and translating some of the things that Mr. Scarola is saying - not every single entry on the privilege log has been objected to. What is being pointed out is that there are certain entries that are argued as being deficient. Some examples of the entries are being argued. From a practical point of view, it can make United Reporting, Inc. (954) 525- 2221 EFTA00621543 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 57 it very difficult to craft an order and can cause all kinds of delay in doing that. What is being suggested is a cut-straight-to-the-chase of having an in-camera inspection, both parties present. And if there is a particular issue, for example, confidential source, because I would then have the document and I would know who the confidential source is, I can ask whatever questions are necessary to determine whether a privilege exists or it does not. If it doesn't, it's released. If the privilege exists, we still have yet to cross the bridge. But this is a threshold question, because a lot of what III seeing that you're arguing, the majority are situations where there is disclosure and the privilege no longer exists. Generally, it deals with disclosure to third parties, but III not necessarily sure that it wouldn't be a lot quicker and easier to do an in-camera inspection and, if need be, line-by-line say yes, no. MRS. SANCHEZ: With both sides? SPECIAL MASTER CARNEY: Both sides. MR. ACKERMAN: May I address that one, Your Honor? United Reporting, Inc. (954) 525- 2221 EFTA00621544 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 58 SPECIAL MASTER CARNEY: As I say, the alternative is, let's assume right now that I take the position that the log is inadequate. What the defense or what the plaintiff seems to suggest - we'll use confidential source for a second - is that the confidential source be revealed. Well, at that point, the cat's out of the bag. No way to take that one back. The question is: Can they argue confidential source or must they in a privilege log always reveal a confidential source? The plaintiff seems to take the position that a privilege log would require that you reveal a confidential source, and I don't think the case law really supports that. And if it doesn't, then it seems to me that there has to be an alternative method of doing it where we have a Master who now has or will have all the Bates Stamp documents. It seems to me at least determining the X or the 0, privileged or not privileged, in terms of the X or the 0 it may be a lot quicker and easier to do the in-camera inspection on that. Once we determine what's left, what's privileged United Reporting, Inc. (954) 525- 2221 EFTA00621545 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 59 or work-product, then we go through the procedure of the hearing at that point to determine whether there's been some situation, crime fraud or otherwise, that somehow eliminates that particular privilege. MR. ACKERMAN: Your Honor, I think Mr. Scarola has glossed over an important requirement in the rule. The rule doesn't His proposal neglects the portion of the rule that says - and this is Rule 1.280(b) 5 of the Florida Rules and there is a similar provision in the Federal Rules - and the idea and what these cases say, I mean, we're not trying to craft additional work for them. We're asking them to do what the law requires: The information must be sufficient to enable the parties to assess the applicability of the privilege or protection. The problem with Mr. Scarola's suggestion is, we can't make any assessment because -- And we did object to the entire entry in the initial letter that I sent out, because there is no identification - and these are requirements in the cases - there is no identification as to who the person is or what their capacity is. There United Reporting, Inc. (954) 525- 2221 EFTA00621546 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 60 is no identification as to who is claiming the privilege in which case it is. I don't want to repeat what I said, but we cannot make any arguments of waiver. You will not know who is who when you do the in-camera inspection. SPECIAL MASTER CARNEY: Actually, I would with both parties here. That's why I would want both parties there to be able to say who is John Doe. MR. ACKERMAN: Your Honor, we can't formulate, we can't make a meaningful assessment as to whether the privilege claim is appropriate or not without having the basic information that's required by TIG. That is a requirement in the rule. It is a requirement in the cases. Because he, Mr. Scarola, believes you can do it doesn't satisfy the rule where it says: In a manner without revealing information itself privileged or protected will enable other parties to assess the applicability of the privilege or the protection. We don't know who these people are. We don't know what capacity they've acted. Mr. Scarola has come in and represented all the United Reporting, Inc. (954) 525- 2221 EFTA00621547 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 61 predicates for the common interests have been met. There's nothing in the log or that we've seen that will establish that. SPECIAL MASTER CARNEY: not sure that part of my concern is the plaintiff is seeking more in the log than is necessarily fully required. For example, on the -- You know, whether it's fact work-product or opinion work-product, III not sure that the log has to distinguish this is fact work-product and this is opinion work-product. I think the log simply need to claim work-product. It may have to identify whether it's a -- if it's a photograph. In this case, it's identifying a memorandum, but III not sure it has to say that the memorandum is a fact work-product memorandum or an opinion work-product or it's both. MR. ACKERMAN: But it's gotta say something -- Excuse me, Your Honor. SPECIAL MASTER CARNEY: It's gotta say work-product. MR. ACKERMAN: How are we going to know what the document is if they just say work-product? They don't describe it. They United Reporting, Inc. (954) 525- 2221 EFTA00621548 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 62 don't say whether it's a statement. They don't say whether it's a photograph. They don't say whether it's a memorandum of law. And I submit to you that that's what these cases require. You're not going to be able to conduct meaningful review. We're not going to be able to make meaningful objections. And that's the purpose of this rule, so that we can do that. SPECIAL MASTER CARNEY: Well, the issue I guess what IIIlooking at, because going to have the documents, III not sure that I agree that I cannot conduct a meaningful review. There is a practical side that IIIlooking at I think both sides really aught consider. We can go back and forth from pillar to post trying to get what the plaintiff considers a perfect privilege log. III not sure we'll ever get that. We can spend the next six or eight months doing that. MR. ACKERMAN: What's wrong with them just identifying who these people are? SPECIAL MASTER CARNEY: We can have an in-camera inspection and resolve it. It may cost us a day or two, but we can have an in-camera inspection and simply put the Xs or United Reporting, Inc. (954) 525- 2221 EFTA00621549 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 63 Os. Once we do that, we can proceed and move pretty well. It seems to me, even if the log -- even if there are defects in the log, if one looks from the practical side, both sides seem to be taking the position at this point: Let's move this along. The fastest way to move it along would be an in-camera inspection. No question that would be the absolute quickest way. Because in the long run, we're going to have to have an in-camera inspection of some sort any way. Down the road, sooner or later, that issue is going to raise. As I say, we can wait three or four months battling back and forth trying to get a perfect privilege log or we can do the in-camera inspection expeditiously and resolve those issues right off the bat. It just seems to me that from a practical side it may be a lot quicker to do it that way. MRS. SANCHEZ: Maybe III not understanding the in-camera inspection, because to me it almost seems as if now you're doing their job which is fine. SPECIAL MASTER CARNEY: Not at all. What United Reporting, Inc. (954) 525- 2221 EFTA00621550 1 2 3 4 5 6 7 8 9 1C 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 64 MI doing is MRS. SANCHEZ: No, but -- SPECIAL MASTER CARNEY: As an example, just to illustrate, go to Page 1. MRS. SANCHEZ: Take the first document? SPECIAL MASTER CARNEY: The first document. The transcript of Alfredo Rodriguez deposition. We can make a determination: Privileged, not privileged. Work-product, not work-product. I mean, I can give it an X or an 0. We can probably right this minute, right now, determine whether that's privileged or not privileged right off the bat. It's taken in front of a court reporter. Does the court reporter waive the privilege? There are various things that we can end up doing. Is presumably a properly noticed deposition a privileged document? Again, I can probably rule on that right now. MRS. SANCHEZ: Depositions are usually public proceedings so -- SPECIAL MASTER CARNEY: What III saying is, a lot of this, things are being raised here. No matter how many orders are -- how many interim things I tell the defendant, we're still going United Reporting, Inc. (954) 525- 2221 EFTA00621551 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 65 to have to sit down and have that decision. It's an X or an O. What I don't necessarily want to do at an in-camera inspection is do an inspection where I don't give opportunity to say anything. And so, if I take the position Gee, if this is done in front of a in-camera anybody any off the court bat, reporter at a deposition, a regularly-scheduled deposition in a civil case, is this privileged at all? And why in the world would I find that to be privileged? They can give me their reasons why they think it's privileged or not, but I can put an X or put an O at the end of that, ultimately, in the absence of an agreement, since right now they're saying we don't want to give any of this stuff. MRS. SANCHEZ: Right. SPECIAL MASTER CARNEY: As unpleasant as it's going to be, in the long run what we're going to need to do is at least sit down and make the threshold determination: Yes, facially, it's privileged. Or, no, it's not. As I go through many of these things, many of these things at least on their face to me don't United Reporting, Inc. (954) 525- 2221 EFTA00621552 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 66 appear to be privileged at all. MRS. SANCHEZ: This in-camera inspection, would there be a court reporter so that we could object later? SPECIAL MASTER CARNEY: Yes. The way I like to do an in-camera inspection just so that both sides are aware: In-camera means that III not showing it to you. So, we know that. You're not going to get to see it. However, what the in-camera does, I can generically identify something and make a determination that it falls within a category or it doesn't. For example, using this deposition. I can say the deposition is yes or no. I can give them an opportunity to raise whatever they feel is appropriate. When we get to a confidential source, III going to know who the confidential source is, because III going to have the paper directly in front of me. You're not going to know the confidential source initially. I'll try and find from them at the hearing why this would fall within some type of a privilege. What III looking for is initially to take the 17,000 or 15,000 entries and assign an X or United Reporting, Inc. (954) 525- 2221 EFTA00621553 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 67 an O to the 15,000 entries. MRS. SANCHEZ: Right. Basically, during this in-camera hearing, essentially, what would happen is that the information that we believe is missing from the log to make that determination, you would look at the document and you would provide the information necessary for us to make that argument? SPECIAL MASTER CARNEY: When you say "provide the information," III not -- MR. ACKERMAN: Here's an example, Your Honor. If there is a letter from Brad Edwards to John Jones, you look at it. How are we going to be able to argue that's a waiver of the privilege without knowing who John Jones is? MRS. SANCHEZ: Right. SPECIAL MASTER CARNEY: That's an easy one. Let's take Entry 2. It's from Brad Edwards to Katherine Ezell. I have no clue who Katherine Ezell is, but we know Katherine Ezell is formally listed here. I can ask Brad Edwards: Who is Katherine Ezell? He can say this is a secretary in the law firm. He can say it's an outside United Reporting, Inc. (954) 525- 2221 EFTA00621554 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 68 accountant. I have no idea who Katherine Ezell is. MR. ACKERMAN: Can't we get that information before you have an in-camera hearing, that's what we're asking for, so that we can -- SPECIAL MASTER CARNEY: I don't actually have a particular problem if we look to do an in-camera hearing to try and trim the in-camera hearing if we can trim it. MR. KNIGHT: That certainly would make it a lot more efficient if we would already -- SPECIAL MASTER CARNEY: Would be to go with what I had originally suggested. If we get a master list of who the players are so that when you're listing people such as Katherine Ezell, Jackie Johnson is another one who I think is a paralegal or with the firm from reading before. MR. EDWARDS: Right. SPECIAL MASTER CARNEY: But when you're listing Jackie Johnson -- MR. SCAROLA: We'll give you a score card. SPECIAL MASTER CARNEY: -- and it's to Adam Horowitz, as to who Adam Horowitz is. So that at least we get a score card of who's who. What III saying, if we do that we may be in a United Reporting, Inc. (954) 525- 2221 EFTA00621555 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 69 position, maybe not, but we may be in a position with a score card of paring down what we actually have to do at an in-camera hearing. MRS. SANCHEZ: The other thing that's interesting on the privilege log, and I know we went through this, is that a lot of these e-mails and/or letters or whatever they are, I think they're all e-mails, usually have ccs and bccs which are important to us also. There's not any of them that have that information. And a cc or a bcc is very, very important, because that in and of itself would be the waiver of the privilege if it went to an outside source or someone that's not within the privilege and that's not here either. SPECIAL MASTER CARNEY: But I am still saying that to have the privilege log - because III not sure that we're going to get a privilege log that is going to satisfy the plaintiff and I don't mean that disrespectfully at all - but I think to get a privilege log when you're dealing with e-mails where there are copies, the blind copies, where you have e-mail strings, they go on forever, the privilege log really becomes relatively unwieldy. And the very unwieldiness United Reporting, Inc. (954) 525- 2221 EFTA00621556 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 70 of the privilege log is going to always create the objection that can be raised. What I'llconcerned with is we can end up with privilege log objection, new privilege log objection, new privilege log objection and go on for months doing that, which is the way I see this going. Or, alternatively, we just take the bull by the horns and sit down and do it. If we sit down and do it, what I normally -- what I would envision is having this and putting an X or an 0 or a check on those things that are privileged, those things that are not privileged. At the end of the hearing the Bates Stamp item, if I'lldetermining that it is privileged, we have it subject to appellate review, subject to court review if Judge Rey wants to look over it, but it's subject to review. We have it set. Once we determine where there are privileges then we can cross the bridge if there are other exceptions to the privilege as it would require a further evidentiary hearing. But III saying a lot of this stuff, probably the majority of it, can be either eliminated as it's not privileged and it is discoverable or United Reporting, Inc. (954) 525- 2221 EFTA00621557 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 71 it's not. Illinot looking to raise at this point or to rule on relevancy objections. MRS. SANCHEZ: How long do you think it would take for us to go through these 15 or How many documents are there in the privilege log, Jack? MR. EDWARDS: I think there's about 2,000 e-mails. MRS. SANCHEZ: 2,000 e-mails? SPECIAL MASTER CARNEY: 2,000? I would think 2,000 e-mails, if we began in the morning, probably a day. We could probably get through it. MR. ACKERMAN: Your Honor, when we -- SPECIAL MASTER CARNEY: But it would probably take a day. MRS. SANCHEZ: I would think it would take a little longer than that. SPECIAL MASTER CARNEY: It might take a couple of days to do it, but it depends on how much argument we're going to end up having. MRS. SANCHEZ: Correct. SPECIAL MASTER CARNEY: And III not envisioning -- There are certain things that I know Jack has talked about evidentiary this or United Reporting, Inc. (954) 525- 2221 EFTA00621558 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 you all have talked about evidentiary that. not looking at the initial culling down as doing evidence. What IIIlooking at is, basically, a quick determination, for example: Is a deposition in its entirety, is a deposition work-product? And it seems to me IIIII get an answer to that one. A lot of these, that's ultimately what III seeing As I have gone through the privilege log, that's what most of them are. There are going to be some that aren't, but most are. And the ones that we actually get to that aren't, we set those aside and that can be a separate evidentiary hearing, but I just think we're going to spin our wheels for a long, long time trying to get a perfect TIG log out of this. When you're dealing with this type of evidence, when you're dealing with the e-mails, with copies and blind copies, strings, I mean, we're just never going to get a perfect privilege log. And as I say, I think that the plaintiff in one respect is expecting more than the plaintiff is likely to get on a privilege log to begin with. United Reporting, Inc. (954) 525- 2221 EFTA00621559 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 73 MRS. SANCHEZ: Well, I think we're just looking for something a little bit more meaningful so that we can narrow what you need to do. For instance, even if we just had the names of the ccs or bccs and who these players are and what connection they had. SPECIAL MASTER CARNEY: How long would it take to get names for the -- The players that we have, anyone who's named in here -- Now, we've got a lot of entries, for example, Jack_t Johnson is just mentioned hundreds of times. MR. EDWARDS: That was my secretary, so I would imagine. SPECIAL MASTER CARNEY: Right. III not necessarily sure that in terms of a list that the list is going to be all that long. We may have 2,000 documents, but we're not going to have 2,000 names. We may have 50 names or thereabouts, but we're just not going to have that many names. A lot of them are repetitive. What III saying, if we can get a master list of who is who, so that we know that Jackie Johnson is your secretary. MR. EDWARDS: And I realize you may be at somewhat more a disadvantage than they are. I United Reporting, Inc. (954) 525- 2221 EFTA00621560 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 74 think that you're being somewhat misled in that all of these people dealt with Epstein and his attorneys for a two-year period of time. To say I don't know who Kathy Ezell is when that is an attorney that represented 21 underaged girls and you dealt with on a daily basis for two years is just not true. I didn't realize that I had to tell them that this is somebody you dealt with for two years every single day. You know who these people are. You may not know and I think so -- SPECIAL MASTER CARNEY: I think it will be, if nothing else, it's helpful for me. But the problem that seeing right now - and again, what = t r y i n g to do is craft something that becomes workable - if we try and parse out which ones they aught know and which ones maybe they don't, we're going to spend forever doing it. We're going to end up with more battles. MR. SCAROLA: We will provide a roster. It will cover at least all the principal players. If somebody's name comes up that we have somehow missed on a copy list, we'll tell you who that person is during the course of the inspection. SPECIAL MASTER CARNEY: We'll pick it up United Reporting, Inc. (954) 525- 2221 EFTA00621561 1 2 3 4 5 6 7 B 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 75 during the inspection. How long would it take to get a master list out? MR. SCAROLA: A week. MRS. SANCHEZ: A week? MR. ACKERMAN: Your Honor, if we're going to proceed down this path, we're not going to take the position that TIG is waived because SPECIAL MASTER CARNEY: Of course not. MR. ACKERMAN: -- we need to be able to have a second opportunity. If you're going to set aside stuff that you're putting an X on, then we want to be able to have the opportunity at that point in time to tell you the additional information we're going to need to assert any type of objection. SPECIAL MASTER CARNEY: Absolutely. Here's what III envisioning. Again, this is in somewhat of a perfect world assuming that nobody has a big objection or is filing objections on this and the initial objections would probably come out of the defense side. Let's say we have 100 entries and let's assume that I decide that 75 of those entries, there simply is not either attorney-client or work-product. Then my view is, you get the 75. United Reporting, Inc. (954) 525- 2221 EFTA00621562 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 76 Now, of course, they can raise an objection at that point if they decide that it's wrong, because I can write out my findings that this is what t finding, that these entries are not work-product. But assuming we don't have a problem with that, then you get the 75. For the 25 that we find that there is work-product, we still then go through the procedure. At this point once I make a determination that there is at least a threshold showing right now that we have an attorney -client privilege or we have a work-product privilege, the burden then may shift to you at that point to come up with, Why not? What we still do according to our original plan is we make a determination at a subsequent hearing: What are the ground rules we're all following? What is the procedure now? What is the standard as a preponderance of the evidence? Is it clear and convincing? What is our standards and what exactly -- who's got what burden to establish what? We lay out the ground rules so that we're all clear on that and then we have a hearing on United Reporting, Inc. (954) 525- 2221 EFTA00621563 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 77 that issue. MR. ACKERMAN: But you're going to have an additional step with that. In one sense you think you may be saving time in one area, but what's going to happen is, you're going to come up with a stack of documents for which you think there is a privilege and then we're going to need to know which those documents are and we're going to need to know or at least be able to express what information we need in order to proceed with our claim that it's privileged or not. So, for example, if there is additional information - going to pick the capacity argument for the sake of it, for the sake of illustrating my point - if they don't tell us who the capacity is and you don't tell us, we can't argue that there is a waiver because we don't know whether the person that received this document was, in fact, part of the litigation team or is protected by some other legal privilege. We need to have an understanding, respectfully, sir, that once the pile of the Xs is determined we have an opportunity at that United Reporting, Inc. (954) 525- 2221 EFTA00621564 1 2 3 4 5 6 7 8 9 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 25 Page 78 point to say we need this additional information if we're going to assert an exception or a waiver. SPECIAL MASTER CARNEY: I had cited a case, and I don't recall off the top of my head the case, but what my recollection of the case is: The threshold burden in this case is upon the defendant to establish that there is a privilege. Whatever the privilege is, it's their burden to establish that there is a privilege. There is a particular standard and the case dealt with the standard that they had to meet to be able to establish that, whether it was prima facie or what their standard is. Once that's established then we know exactly what the privilege is and exactly what they're claiming. If they are claiming that this is team information, they're going to have to establish the basis upon which they're claiming a privilege; and that's their burden. Your burden doesn't come until after that. Once they establish that, then you have to establish why there is an exception to it, that there has been outside disclosure. Whether we United Reporting, Inc. (954) 525- 2221 EFTA00621565 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 79 have, for example, a litigation team privilege, whether that applies, they have to establish litigation team. That's the point where you would argue, no, it's not litigation team. Either there is no such privilege as litigation team or these people aren't on the litigation team. They have to put on sufficient evidence to establish the litigation team. Once they establish it, if they can, then the burden comes on you to come up with some reason why then; because there's been disclosure to a third party, because there's been some other thing that would somehow obviate that particular privilege. But the threshold questions that you're talking about they have to establish first. MR. ACKERMAN: III not sure I agree with you. III not sure -- My concern is to address if they're not established at the time that you finish your review. SPECIAL MASTER CARNEY: No. What MR. ACKERMAN: Because they haven't established it in terms of this log, in terms of, for example, whether there's a waiver because they haven't identified the people. United Reporting, Inc. (954) 525- 2221 EFTA00621566 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 80 That's an example of what I'lltalking about, and there may be others. SPECIAL MASTER CARNEY: Well, what III looking at right now is, in terms of what I see, the first in-camera inspection is more one of exclusion than inclusion. What I'llsaying is, I'lltaking out the stuff that is fairly obviously not privileged. When we get to things where there may be an evidentiary hearing, whether it's privileged or not, what IIIlooking at are certain things that are not privileged. Let's say, the deposition. There maybe an argument the deposition simply is not privileged. If it's not privileged, it's not privileged. If there has been disclosure to third parties and on the face of it I can see we have disclosure to third parties and they're not raising litigation team, they're not raising whatever they're raising, then it's not privileged. Now, if they raised litigation team and so we end up with that Katherine Ezell and they're raising this is litigation team, what my view is initially at that point at the first in-camera inspection, I'll let that go. I'll let them United Reporting, Inc. (954) 525- 2221 EFTA00621567 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 81 raise what they are raising. At a second hearing once we narrow down, because at this point now you're going to know that Katherine Ezell, what they are raising actually is the litigation team. And so you're going to know that at the end of the first hearing at least what they're raising. When we actually get to a second hearing on this, the second hearing, the threshold burden is on them. Evidentiary hearing, they're going to have to establish litigation team. If they don't, it gets released. If they do, then the burden switches over to you and you're going to have to establish what exception you feel is an appropriate exception. But what III saying, by the end of our first hearing we will have culled out everything that is obviously not privileged and, ideally, we would have at least narrowed down what the privilege is. If it's an exotic privilege such as litigation team or this is a right of privacy, whatever they're ultimately alleging as to why that shouldn't be turned over, with each of those documents we're going to go through and United Reporting, Inc. (954) 525- 2221 EFTA00621568 Page 82 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 make that determination. MR. SCAROLA: I have a question. SPECIAL MASTER CARNEY: Yeah. MR. SCAROLA: Why must that be done in a two-step process? If we've got the document in front of us right now and if it identifies Katherine Ezell, if the basis of our privilege claim is that Katherine Ezell shared a common interest with us and the information was being shared confidentially pursuant to an agreement to exchange information among persons who were prosecuting claims against Mr. Epstein on behalf of child victims of Mr. Epstein, why can't that determination be made while we have that document in front of us as opposed to putting it aside and coming back to it at a later time to argue that? We know what the issues are. They've been briefed by it by opposing counsel extensively in the memo that's already been submitted. We argue it. You decide it. That document is out of the way. We don't have to come back to it. SPECIAL MASTER CARNEY: My only quarrel with that is, that suggests an evidentiary hearing. And as we try to go through 2,000 documents, United Reporting, Inc. (954) 525- 2221 EFTA00621569 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 83 that's going to take it a lot longer than a couple of days as we go through that. =more inclined to give them a relatively clear - by "them," being the plaintiff - a relatively clear idea of what particular privilege is being asserted. If they want to challenge and cross-examine Katherine Ezell, they can challenge and cross-examine Katherine Ezell. But I think we'll need to take a look at the case that I had cited at one point which seems to be the relatively pole star case on how to do these hearings. I can't recall whether that needed a prima facie showing. Ultimately, I think we're going to need to sit down and figure out our ground rules on exactly how we're doing it. Can you say it? Is that sufficient? Do we have to bring in Katherine Ezell? Does she have to testify? We're going to have to lay out the ground rules, and III not necessarily sure on the in-camera inspection that it's going to be economical doing it that way. MR. SCAROLA: III not suggesting that the right to an evidentiary hearing be eliminated, United Reporting, Inc. (954) 525- 2221 EFTA00621570 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 84 but taking the specific example that we are presently discussing, it is unimaginable that they are going to contest the fact that Katherine Ezell was representing child victims of Mr. Epstein at the same time that Brad Edwards was representing those child victims. SPECIAL MASTER CARNEY: What I don't have a problem with that we may be able to resolve at this point: If we're dealing with only a legal issue where both sides are in accord that the facts are not particularly in dispute, and so if we're dealing with an issue is there such a thing as a litigation team privilege, either there is or there isn't -- MR. SCAROLA: That's all III suggesting. SPECIAL MASTER CARNEY: Then III saying if it's a legal issue only, I can probably resolve it at the in-camera inspection. If it's not a legal issue only, if there is a mixed question of fact and law, it requires an evidentiary hearing and I wouldn't resolve it. But what III trying not to do at the initial in-camera inspection is get into evidentiary issues, because that will dramatically lengthen the in-camera inspection. United Reporting, Inc. (954) 525- 2221 EFTA00621571 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 85 MR. SCAROLA: I understand and I agree. MR. ACKERMAN: Your Honor, my concern is that while there may be some documents, it's hard for us to commit to what's going on without knowing who people are. In the case of Katherine Ezell, she may have sent this litigation strategy memo to a third party thus waiving it after you look at it. SPECIAL MASTER CARNEY: That's fine. MR. ACKERMAN: We need to have an intermediate step here that allows us to look at what you are tentatively upholding a privilege on so that we can see if we have enough information to make a challenge to the privilege, if we feel it's appropriate, or not and brief you on that before there is a final ruling, as we had discussed at the last procedure hearing we had, where we would have a chance to brief you on the procedure and the method for determining any claims of privilege that you've preliminarily determined exists. SPECIAL MASTER CARNEY: Let me see if we can agree on the following. Today is Tuesday. By say Tuesday of next week, get a master list, which would be -- United Reporting, Inc. (954) 525- 2221 EFTA00621572 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 86 MRS. SANCHEZ: The 22nd. MR. KNIGHT: The 22nd. SPECIAL MASTER CARNEY: Have a master list by the 22nd. I had indicated to everybody, I think previously, III out of town starting tomorrow and I will be out of town through the 25th. Beginning on Monday, the 28th, III back in town. Depending on your schedules, III anticipating -- I would like to see with a nice early start we get it done in a day. I don't think a day is going to be unreasonable, because I think a lot of this, it's not going to require that much argument. It's a question of just going through 2,000 entries and I think we can go through 2,000 entries in a day. MR. SCAROLA: There may be five legal arguments that's going to be determinative of every issue that's before the court. SPECIAL MASTER CARNEY: If we do that, if you all are available on the week of the 28th; the sooner we do it, the better we do it. Because at that point, what III envisioning is we, hopefully, cull this down significantly. Once we cull this down significantly we then United Reporting, Inc. (954) 525- 2221 EFTA00621573 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 87 know what the issues are, what privileges are being asserted and on what documents they're being asserted. What III like to do, because it will give us an idea then of the approximate period of time that we may need for the second hearing, III actually seeing the second hearing is probably going to be a lot shorter than the first. Because what III ultimately saying is, it's probably going to be the applicability of four or five theories or the non-applicability as opposed to going through on a document-by-document on each one. MR. KNIGHT: What specifically are you requiring of a master list, because the TIG objection in the beginning here is we need more information to be able to make that hearing efficient to move along? MR. SCAROLA: We're going to give you an alphabetical -- MR. KNIGHT: We need the ccs and the bccs. SPECIAL MASTER CARNEY: Right. You're going to get a list of anyone that they've named, who they are. So you'll get anyone that they've United Reporting, Inc. (954) 525- 2221 EFTA00621574 1 2 3 4 5 6 7 8 9 10 11 1 2 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 88 named, you'll get who they are. You'll get that done by Wednesday. And then at the hearing, because what I will have is, I will have the log but Illi also going to have the Bates Stamped documents. And so I'll sit there with that Bates Stamped document and we'll go through document by document. MRS. SANCHEZ: And at that point you'll read the ccs and bccs to us? SPECIAL MASTER CARNEY: Yes. Well, whether I read the ccs and bcs to you, we'll take it case by case. For example, if we have what they're claiming is a confidential source, I may not name the confidential source for you. Otherwise, I may not have any problem doing it. MR. KNIGHT: And we still would have our arguments as to why a confidential source is not going to be protected and, in fact, it's a waiver? SPECIAL MASTER CARNEY: Sure. Absolutely. What III saying is, purely legal arguments, I can handle purely legal arguments at the initial hearing. What III saying is out of this log, at the end of this hearing on the log, I can put yes, no, yes, no, yes, no as to privilege, United Reporting, Inc. (954) 525- 2221 EFTA00621575 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 89 non-privilege. For the nos, it's not privileged, you get them. For the yes that it's privileged, at that point now you will know what the privilege is that's being asserted, whether it's attorney-client, work-product, whatever is ultimately being asserted here. I will try at the hearing to ensure that you have as much information as you need on a particular document. You can then make a determination. We should be able to see how many different issues we've got and be able to iron out the time for our second hearing, how long that second hearing is going to take and how quickly we can do it. MR. ACKERMAN: Your Honor, I would respectfully request that as part of the master list they add the ccs and the bccs, because if we know who everybody is that's getting these documents then this review will go a lot faster. I think if they end up looking at these given the kind of list they've got on the log, it's going to end up being the same people. I don't think it's going to be that onerous. I would request that they do that, because United Reporting, Inc. (954) 525- 2221 EFTA00621576 1 2 3 4 5 6 7 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 90 then we don't have a dispute at the time as to whether so-and-so is so-and-so and what their capacity is. You'll know and we'll know and be able to address it at the hearing. It will be a lot more efficient. MR. SCAROLA: There are 2,000 e-mails. That is an extraordinary burden. SPECIAL MASTER CARNEY: =inclined to agree. What I will do is this, and I think we may not have any problem with this one: For any particular e-mail where I'll determining that it looks like, facially, we have a privilege where we have non-confidential ccs and bcs, I will tell you who they are. MR. ACKERMAN: You'll tell us the names, but we won't know who they are and their capacity. That's what we're asking them to do now. SPECIAL MASTER CARNEY: What they're going to give at some point, because III assuming that this master list that they're going to give is going to pretty much be covering everyone who is on the cc and bcc list. MR. ACKERMAN: I expect it will, but III asking you to specifically ask them to do that. United Reporting, Inc. (954) 525- 2221 EFTA00621577 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 91 Because if you have all of the people on the bcc list and the cc list, then you're going to be able to look right then and there and see whether they're a part of the law firm or not. Otherwise, you're going to tell us who the cc is and the bcc. And if they're not on the list, we're going to need to know who that is and how it impacts it. If we have those people in advance, we could move this a lot faster. SPECIAL MASTER CARNEY: in hopes that we are actually going to have those people in advance. What saying is, M B not necessarily looking that on Bates Stamp number such-and-such that we get the cc and bcc list for every single person on Bates Stamp 950. If we have, nevertheless, for the 2,000 as we have the players, who these are going to; cc, bcc, whatever it is, who these are going to, so that we know who they are. When I actually have the document in front of me, if III looking at Bates Stamp 950 and I say Bates Stamp 950 looks to me like it is a privileged document. And you say, well, can you tell me who the cc is or who the blindcopy goes to? I can tell you, yes, it goes to John Smith and so forth. That's United Reporting, Inc. (954) 525- 2221 EFTA00621578 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 92 who it goes to. MR. ACKERMAN: Illinot asking them to do -- SPECIAL MASTER CARNEY: But you will have the master list and you'll know that John Smith is a paralegal for the firm. MR. ACKERMAN: They don't have to do -- So =clear on what III requesting. If they look at a bcc and they see John Smith, they put his name on the list. They don't have to put his name next to each document if he's on that document. You're going to see that. SPECIAL MASTER CARNEY: Right. MR. ACKERMAN: What we want is a list of the capacities of everybody that is originating documents, receiving them or getting copied. Whether they're on there one time or two times, I don't think we need to know how many documents they're on or which ones. You're going to see that. What I do think we need to know by the time we do this is who is on them and what their capacity is. SPECIAL MASTER CARNEY: I don't have a problem with that, because III traveling right now initially under the assumption that in spite of the number of documents that we have that the United Reporting, Inc. (954) 525- 2221 EFTA00621579 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 2.0 21 22 23 2.4 25 Page 93 list isn't that big. When I went through the documents, at least a large portion of the documents, the list isn't all that big. It's the same people over and over and over again. And so to that extent, if we can get that information, it doesn't have to be attributable to each and every individual e-mail, but at least a master list of who everybody is where you're willing to actually give a name. For the ones that you aren't, we'll deal with the confidential source as we get to it. But what III saying then, if we can get a time, ideally, if you all can check your calendars now, if we can get a time and let's block off a time MRS. SANCHEZ: Just so I can understand: Do none of these e-mails have attachments, Joe? MR. ACKERMAN: They're not -- MR. SCAROLA: Some do. MRS. SANCHEZ: But none of these, the log doesn't seem to -- MR. ACKERMAN: The log doesn't designate any attachments. United Reporting, Inc. (954) 525- 2221 EFTA00621580 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 94 MRS. SANCHEZ: -- any attachments nor did any of the documents we received, the irrelevant ones and the ones that were for attorney's eyes only, I didn't see any attachments. Were you not printing out attachments? MR. EDWARDS: Something was printed out for me. I didn't printout anything. They were delivered to my office and I used that. So then I would turn it over. If it was irrelevant, I 1 didn't turn it over. If the attachment was in there, it was in there. I didn't take out an attachment that was attached or anything like that. MRS. SANCHEZ: Okay. I didn't see an attachments, that's why -- MR. EDWARDS: Yeah, all that was printed was the e-mail, all the e-mails. So if there was an attachment to it, it may or may not have been printed. Although, I think some attachments were there because there were deposition transcripts and things like that, and I think we turned those over. MRS. SANCHEZ: Well, like the first one, 76 to 89 does not seem like that would be a full transcript of a deposition. But I could be, I United Reporting, Inc. (954) 525- 2221 EFTA00621581 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 95 mean, maybe III wrong. Maybe it's a mini version or something and we'll have it. I mean, you know, if there was -- I would go back to the disk and check the disk to make sure that - I can't check it - to make sure that the printing from the disk with the Bates Stamp included all the attachments. I just noticed now on the documents you gave us and in this that I don't see attachments. I find that strange. MR. EDWARDS: Whatever there was was either turned over or -- I didn't take out attachments. I don't see how the production of a deposition is going to prove that somebody was involved in the ponzi scheme or not. III lost in this process. SPECIAL MASTER CARNEY: Let's see if we can come up with a time that everyone is -- MR. KNIGHT: I was just trying to pull up my calendar. MRS. SANCHEZ: My only bad day is that Monday. MR. ACKERMAN: On the 28th. We have a number of hearings on that case, too. MR. SCAROLA: Brad is in trial the week of United Reporting, Inc. (954) 525- 2221 EFTA00621582 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 96 the 28th. I am on Judge Streitfeld's calendar in a tobacco trial that is backup on the 28th. If that does not go forward and then I am going to have some flexibility the week of April 5 it looks like. SPECIAL MASTER CARNEY: That's April 4. MR. SCAROLA: April 4, yes. MR. ACKERMAN: I think that would be a better week for me. MR. KNIGHT: The week of the 28th, fin Texas. Towards the end of the week, Min a big hearing on the 28th. SPECIAL MASTER CARNEY: How about April 4th, we can block off a day on that? MR. ACKERMAN: I can do the 4th. MR. SCAROLA: The 4th is not good for me. have a mediation set on the 4th. MR. ACKERMAN: How about the 6th? MR. SCAROLA: The 6th is good. MR. EDWARDS: The 6th is good for me, too. MR. KNIGHT: I'll work on it. I've got a couple of things I have to work on. SPECIAL MASTER CARNEY: Lilly? MRS. SANCHEZ: III fine. SPECIAL MASTER CARNEY: The 6th. The United Reporting, Inc. (954) 525- 2221 EFTA00621583 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 97 location is here. You want to meet middle ground? MR. SCAROLA: This is fine. SPECIAL MASTER CARNEY: My recommendation - although III not the one driving in traffic at this point when it's up here - the earlier we get started, the more likely we are to finish it. As early as you all are You all are traveling. So, again -- MR. KNIGHT: Some people have kid drop-off schedules. SPECIAL MASTER CARNEY: Pick the time, but as early as we can reasonably get started I would just as soon MR. KNIGHT: We'll try to get back to you as early as we can. I don't know which day. MRS. SANCHEZ: Barring no traffic, I usually can get here 9:15, 9:30, the latest. SPECIAL MASTER CARNEY: You want to tentatively set 9:15. And if you're not here, we'll wait until you get here. Tentatively set it for 9:15 and then plan on a reasonably quick lunch. MR. SCAROLA: I'll have lunch brought in. SPECIAL MASTER CARNEY: Thank you. Do I United Reporting, Inc. (954) 525- 2221 EFTA00621584 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 98 need to write something up for Judge Rey as to what we're doing here? MR. ACKERMAN: I think you aught to write something up. SPECIAL MASTER CARNEY: Like an interim -- MR. ACKERMAN: Interim report. SPECIAL MASTER CARNEY: Interim report. MR. KNIGHT: Good idea. SPECIAL MASTER CARNEY: What going to do is, I'll go ahead and write out an interim report and I'll e-mail it to you. And if you can -- MR. ACKERMAN: Put it into a form file. SPECIAL MASTER CARNEY: Polish it. MR. ACKERMAN: I'll send it to Jack. SPECIAL MASTER CARNEY: And then submit it to the judge. It's not going to have I guess a handwritten signature, but it will be -- I'll put my name. MR. ACKERMAN: Well, what we can do is, when we get the form, I can send it to you. You can sign it. We can do a Notice of Filing of interim report. And then your signed one will get filed. SPECIAL MASTER CARNEY: What you can do, if United Reporting, Inc. (954) 525- 2221 EFTA00621585 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 99 you want to catch me where I can be caught, the French Quarter Inn in Charleston. I'll be there Friday and Saturday. MR. ACKERMAN: This Friday and Saturday. SPECIAL MASTER CARNEY: Yeah, this Friday and Saturday. And so, if you get it there on Friday, what I can do is sign it and send it back to you. MRS. SANCHEZ: And you'll e-mail us whatever it is? SPECIAL MASTER CARNEY: I'll e-mail it first so that you have it. The easiest way that's going to be fairly quick, if you can Fed Ex it up with a return package so I can get it right back to you. But it's the French Quarter Inn is the name of the place. That's Charleston, South Carolina. And then I'll skip it right back to you. Then what I'll do is try and get a quick interim report out this afternoon so that you actually have one this afternoon so you can work on it. Anything else that needs to be addressed? MR. SCAROLA: No, sir. Thank you. MR. KNIGHT: Not at this time. Thank you United Reporting, Inc. (954) 525- 2221 EFTA00621586 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 100 for your time. MR. ACKERMAN: No, Your Honor. (THEREUPON, the meeting concluded at 12:15 p.m.) United Reporting, Inc. (954) 525- 2221 EFTA00621587 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 101 REPORTER'S CERTIFICATE STATE OF FLORIDA COUNTY OF BROWARD ) )ss ) I, Lee Lynott, Certified Shorthand Reporter and Registered Merit Reporter in and for the County of Broward, State of Florida, do hereby certify: That said meeting was taken before me at the time and place set forth and was taken down by me in shorthand and thereafter reduced to computerized transcription under my direction and supervision, and I hereby certify the foregoing is a full, true and correct transcript of my shorthand notes so taken. I further certify that I am neither counsel for nor related to any party to said action nor in anywise interested in the outcome thereof. IN WITNESS WHEREOF, I have hereunto subscribed my name this 11th day of April 2011. Lee Lynott, RMR, RPR Notary Public, State of Florida MY COMMISSION I DD996092 EXPIRES: June 29, 2014 Notary Public Underwriters United Reporting, Inc. (954) 525- 2221 EFTA00621588 Page 102 89:16 90:15,24 92:2,6,13 93:20 93:24 95:23 96:8 96:15,1898:3,6 agenda 3:15 agents 28:14,17,21 30:8 ago 4:11 appear 66:1 appearances 2:3 appears 34:24 35:2 appellate 9:15 argued 19:7 30:25 31:20 36:13 37:8 55:9 56:23,24 arguing 46:157:14 A ability 16:14 37:2 49:23 51:24 53:6 53:12 able 16:23 20:21 98:13,15,20 99:4 agree 6:7 7:3 9:6 10:18,19 16:10 argument 16:11 24:15 27:1,2,13 100:2 10:18 13:22 14:1 17:6 70:16 37:20 42:11 48:2 40:10,21 51:24 ackermans 5:17 14:8,21 15:4,10 applicability 24:11 48:6 51:3,8,18 53:7 60:9 62:5,6 35:20 16:5 18:2,4 37:23 59:17 60:21 53:14 67:8 71:21 67:14 75:9,12 acted 60:24 38:13 45:6 62:11 87:10 77:15 80:13 77:9 78:14 84:8 action 8:24,25 79:17 85:1,23 application 54:1 86:14 87:17 89:11,12 12:25 18:12 90:9 applies 48:9 79:2 arguments 35:19 90:4 91:3 33:20 101:14 agreed 4:11 17:23 apply 22:25 30:20 60:4 86:18 88:17 absence 11:7 17:24 actions 50:25 39:24 47:7 88:21,22 18:15 65:15 actual 7:1 agreeing 15:20 appointed 3:23 9:9 arising 54:19 absent 28:24 30:21 adam 68:22,23 agreement 6:5 13:1,24 14:5,14 arrange 33:17 absolute 63:9 add 19:1 30:24 17:25 18:15 20:9 aside 72:14 75:11 absolutely 8:22 55:10,23 89:18 28:10 54:7,22 appointment 14:17 82:16 10:1 14:9 24:16 added 55:13,14 56:2,3 65:16 20:13 asked 31:7 35:11 46:2 52:14 additional 25:3 82:10 appropriate 20:22 asking 7:2 20:1,2 75:16 88:20 53:14 59:14 agreements 6:3,4 24:6 32:22 37:10 24:6 32:23 33:3 abundantly 23:8 75:13 77:3,13 ahead 45:20 98:10 44:16 50:11 59:14 68:5 90:17 abuse 15:13,15 78:1 a132:25 54:12 60:13 90:25 92:2 16:22 53:9 address 4:23,24 alfredo 64:7 66:16 81:15 aspects 30:16 accept 10:22 40:20 10:11 20:5 39:2,3 alleging 81:23 85:15 assert 37:3 49:3 accepted 21:22 48:14 55:20 56:8 allow 10:1,20 appropriately 5:5 75:14 78:2 accepting 42:4 57:24 79:19 90:4 14:23 25:7 55:15 asserted 23:14 accepts 14:20 addressed 5:2 allowed 32:2 appropriateness 52:4,10 53:4,8 access 36:18 37:3,5 19:10 20:8,22 allows 29:2 32:17 43:3 83:6 87:2,3 89:5 accompli 18:16 31:4 56:15 99:23 85:11 approximate 87:5 89:7 accomplish 20:15 addresses 43:10 alphabetical 87:20 april 31.7 96:4,6,7 asserting 49:6,15 20:16 addressing 47:16 alternative 58:2,18 96:13 101:17 assertion 45:15 accomplished 4:20 adequate 23:11 alternatively 70:8 arbiter 8:24 14:25 46:16 55:3 accord 84:10 31:22 32:15 50:3 analysis 15:21 15:1,22 assess 59:17 60:21 accountant 68:1 admissibility 13:11 andrews 2:10 arbitrate 14:8 assessment 59:20 accurate 8:15 adopting 9:13 ann 2:4 arbitrated 15:11 60:12 ackerman 2:5 4:13 advance 21:20 answer 5:12 44:7 arbitration 14:11 assign 66:25 11:23 12:4,4 37:3 91:9,12 72:8 14:24 16:8,18 assume 16:11 58:2 18:25 21:1,4,12 advanced 35:19 anticipating 86:10 17:2 75:22 22:9,16 24:23 advancement anticipation 26:5 area 29:15 77:4 assuming 75:18 25:2 33:8 55:19 53:24 anybody 65:5 areas 42:19 48:25 76:5 90:20 55:21 56:7 57:24 adversary 19:19 anywise 101:15 arena 29:10 assumption 92:24 59:6 60:11 61:19 53:25 apparently 17:23 arent 27:13 72:12 attached 94:12 61:23 62:20 adverse 43:1 appeal 16:3,7,8,15 72:13 79:6 93:12 attachment 94:10 67:11 68:3 71:14 advising 18:9 17:7,8 argue 27:14 58:10 94:12,18 75:5,9 77:2 79:17 afternoon 99:20,21 appealed 16:16 67:14 77:18 79:4 attachments 93:19 79:22 85:2,10 a g 1:9 appeals 37:17 82:17,21 93:25 94:1,4,5,15 United Reporting, Inc. (954) 525- 2221 EFTA00621589 Page 103 94:19 95:7,9,12 harkett 52:17 beyond 10:17 90:7 71:19,23 73:7,14 attempted 41:10 barnhart 1:18 2:12 32:16 37:9 burnett 2:4 74:12,25 75:8,16 attempting 33:17 barring 97:17 big 75:19 93:1,3 business 3:21 78:4 79:21 80:3 39:1 based 19:22 30:10 96:12 31:25 32:6,21 82:3,23 84:7,16 attention 27:4 33:16 39:11 bill 34:19 85:9,22 86:3,20 C attorney 30:8 40:14 41:3 47:6 binding 7:17 8:2 87:23 88:10,20 calendar 95:20 33:14 34:11 74:5 48:21 10:2,7,21 14:11 90:8,19 91:10 attorneyclient basic 60:14 14:24 15:22 16:8 96:1 92:3,12,22 95:17 24:13 25:18,25 basically 7:7 22:23 16:18 calendars 93:15 96:6,13,23,25 35:14 38:2,23 67:2 72:4 bit 10:8 51:3 73:2 calling 12:1 97:4,12,19,25 41:4 43:18 49:16 basis 8:7,16 27:7 blind 69:22 72:20 cant 9:10 17:7 18:7 98:5,7,9,14,16,25 75:24 76:12 89:6 29:11 36:25 blindcopy 91:24 20:6,20 44:22,25 99:5,11 attorneys 26:8 46:13,15 52:4 block 93:16 96:14 50:19,20 59:20 carolina 99:17 27:22 28:13,21 74:6 78:20 82:7 blood 52:19 60:11,12 68:3 case 1:9 6:1 8:19 33:24 74:3 94:3 bat 63:18 64:13 book 34:21 77:18 82:13 12:23 16:10 19:4 attributable 50:5 65:7 bootstrap 41:18 83:13 95:5 20:23 23:8,15 93:8 bates 46:22,23,24 bother 52:22 capacities 23:17 24:4,4,22 26:23 aught 7:13 18:6 58:20 70:14 88:5 bottom 47:4 25:19 35:11 28:4 29:2,7,17 49:4 62:14 74:17 88:6 91:13,15,21 boulevard 1:19 92:14 30:8 31:13,25 98:3 91:21 95:6 2:13 capacity 27:16 32:2,20,21 34:8 august 16:24 battles 74:19 bound 11:8 18:13 59:25 60:24 35:3 36:7,17 author 43:23,25 battling 63:15 boxes 34:2 77:14,1790:3,17 37:16,22 38:6 authorities 54:18 bcc 69:11 90:23 brad 33:9,13 34:15 92:21 41:2,5 49:25 50:4 authority 8:22 91:1,6,14,18 92:8 35:2,6 49:9,11 card 68:21,24 69:2 50:5 52:18 53:5,9 55:6,16 bees 69:9 73:5 67:12,19,23 84:5 care 11:14 54:3 58:15 60:2 available 43:15 87:22 88:9 89:18 95:25 carefully 38:18 61:14 65:10 78:4 44:7 46:25 47:1 bcs 88:11 90:13 bradley 1:13 2:9 carl 34:23 78:6,6,7,12 83:11 86:21 beach 1:7,19,19 12:11 50:18 carney 1:3 3:3,25 83:12 85:5 88:12 avenue 1:24 2:6,10 2:13,13 break 28:6 4:9 5:8 6:20 7:3 88:12 95:24 aware 21:18 38:10 began 71:11 bridge 57:12 70:20 8:21 10:6,25 12:2 cases 23:24 24:3 66:7 beginning 15:13 brief 32:1,5 85:16 12:14,14,16 26:22 28:25 29:8 86:7 87:16 85:19 13:19 14:1,9 31:21 38:4,18 - 0 behalf 24:24 35:19 briefed 82:19 15:19 16:9,20 39:2 48:6 55:25 back 5:17 13:4,18 82:12 briefly 56:7 17:20 22:11 59:13,24 60:16 22:11 58:9 62:15 believe 4:9,18 5:20 bring 83:18 24:21 25:1 35:16 62:4 63:15 82:16,22 8:14 20:5,14 brings 49:17 35:22 36:3 37:18 catch 99:1 86:7 95:4 97:15 23:19 33:21 brought 4:2 19:2 39:13 41:17 category 66:12 99:8,15,18 34:17 40:18 21:9 30:25 34:1 44:12 46:21 47:9 cats 58:8 backup 10:6 96:2 53:18 67:4 97:24 48:16,24 49:8 caught 99:1 bad 4:8 95:21 believes 22:9 60:17 broward 101:3,6 51:2,12 55:22 cause 57:2 bag 58:8 belong 49:20,20,21 bull 70:8 56:16 57:23 58:1 caused 40:11 balance 53:2 49:24 bunch 17:4 60:7 61:4,21 62:9 causes 33:20 bankruptcy 7:9,9 belongs 49:19 burden 39:9 46:12 62:22 63:25 64:3 causing 10:8 7:15 8:1,8,12 50:12,22 52:2 76:13,23 64:6,22 65:19 cc 69:11 90:23 91:2 10:4 18:14 19:15 best 9:1 78:7,10,21,22 66:5 67:9,18 68:6 91:6,14,17,23 37:13 41:10 better 86:22 96:9 79:10 81:9,13 68:12,19,22 ccs 69:8 73:5 87:21 bar 25:12 69:16 71:10,15 United Reporting, Inc. 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(954) 525- 2221 EFTA00621592 Page 106 84:7 86:11 89:24 90:1 92:6,9,17,22 95:9,13 97:16 eliminates 16:13 59:5 eliminating 35:23 establish 25:25 27:18 45:24 61:3 76:23 78:8,10,14 exclusively 13:6 41:4 excuse 5:2238:15 fact 15:2 19:22 23:25 25:14 26:4 26:15,19,20,25 downside 18:20,21 email 33:20 34:5 78:19,23,24 79:2 56:1 61:20 27:16 41:9 44:5 dramatically 84:24 34:14 69:23 79:8,9,16 81:11 exist 52:12 48:7 51:24 53:21 driving 97:5 90:11 93:9 94:17 81:14 existed 54:22,23 55:2 56:3 61:8,10 dropoff 97:10 98:11 99:9,11 established 27:8 56:4 61:16 77:20 84:3 due 19:16 20:12 emails 27:6 35:2 28:2 34:1 36:1 exists 29:15 46:1 84:20 88:18 22:21 69:7,8,22 71:8,9 78:16 79:19,23 54:13 57:10,12 facts 26:14 84:11 dueling 13:15 71:11 72:19 90:6 establishing 27:22 57:16 85:21 failed 27:18 duties 5:13 93:19 94:17 29:8 46:12 exotic 81:21 failing 50:2,13 enable 24:1059:16 establishment expect 22:490:24 fails 50:8 E 60:20 28:19 30:21 expectation 54:25 failure 31:22 50:5 earlier 12:1 30:25 ended 40:5 et 17:6 32:25 35:15 expecting 72:23 50:10 97:6 ensure 89:8 evaluate 24:11 expedited 15:3 fair 42:11 early 86:11 97:8,13 enter 20:3 21:17 everybody 86:4 expeditiously fairly 80:7 99:13 97:16 33:3 89:19 92:14 63:17 fait 18:16 easier 57:19 58:24 entered 6:23 19:4 93:10 expenses 56:3 faith 4:8 easiest 99:12 19:22 39:16,24 evidence 29:6,19 expires 101:20 fall 66:23 easy 6:11 67:18 entire 23:15 41:9 38:17 72:3,19 explicitly 42:19 falls 45:2 66:11 economical 83:22 59:21 76:20 79:7 express 54:7 77:10 far 10:5 25:17 edwards 1:13 2:8,9 entirely 40:15 evidentiary 70:22 expressed 42:22,23 farmer 2:8 23:2 12:12,15 23:2,18 entirety 10:24 71:25 72:1,15 expressly 7:22 32:11 27:6 30:1 32:11 35:10 72:6 80:9 81:10 82:24 36:9 37:16 fashion 5:25 9:6 32:25 34:8 35:3,6 entitled 24:5 27:10 83:25 84:20,23 extended 4:6 29:23 36:18,21 37:21 49:14 53:22 ex 99:14 extends 31:13 faster 52:21 89:21 38:11 41:13 entrap 34:17 exactly 7:1042:2 extensive 22:17 91:9 49:10,11,20,22 entries 47:16 56:23 47:10 76:22 extensively 82:19 fastest 15:4 63:7 50:18 67:12,19 56:24 66:25 67:1 78:16,17 83:16 extent 31:18 53:3 favored 42:21 67:23 68:18 71:7 73:10 75:22,23 examination 35:10 93:6 fbi 28:14,21 30:8 73:12,24 84:6 76:4 86:15,16 examine 36:24 extraordinary 35:4,6 94:6,16 95:11 entry 22:24 47:17 examined 38:17 90:7 february 23:1 96:20 56:20 59:21 example 28:12 eyes 94:3 fed 99:13 efficient 68:11 67:19 30:7 33:8 44:24 ezell 67:20,21,21 federal 31:24 87:18 90:5 envision 70:11 47:12 57:6 61:7 67:24 68:1,15 59:12 effort 26:17 28:5 envisioning 71:24 64:3 66:13 67:11 74:4 80:22 81:4 feel 66:15 81:14 41:12 75:17 86:23 72:5 73:10 77:13 82:7,8 83:7,9,18 85:15 egregious 50:16 epstein 1:10 4:8 79:1,24 80:1 84:1 84:4 85:6 figure 83:16 eight 4:21 62:18 49:10,13,14 54:6 88:12 file 21:19 34:2 F either 3:16 5:11 54:9,15 74:2 examples 33:7 98:13 - face 39:18 65:25 69:15 70:24 82:12,13 84:5 35:8 56:24 filed 22:16 28:25 75:23 79:5 84:13 epsteins 34:22 exception 78:2,24 80:16 41:11,14,22 95:11 36:13 56:2 81:14,15 facial 30:2 31:18 44:18 49:13 elements 24:14 esquire 2:4,5,5,9 exceptions 70:21 facially 65:23 98:24 55:10,12,14,25 2:12 exchange 82:11 90:12 filing 45:1075:19 eliminated 70:24 essentially 67:3 exclusion 80:6 facie 45:24 46:12 98:22 83:25 52:4 78:15 83:14 United Reporting, Inc. 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(954) 525- 2221 EFTA00621595 Page 109 johnson 68:16,20 73:11,23 joins 11:19 joint 27:7,20,23 6:16,22 12:7,7 13:16 16:20 17:19 21:8 33:7 68:10 86:2 87:14 84:20 91:4 lawyer 26:10 29:22 29:25 lawyers 36:13 54:5 80:18,21,23 81:5 81:11,22 84:13 85:7 little 10:8 39:15 38:10 62:10,13 66:24 71:1 72:2,4 73:2 80:4,10 89:21 91:13,20 28:3,9,15 .53:16 87:21 88:16 56:2 51:3 71:18 73:2 looks 3:3 7:10 63:5 53:17,19 95:19 96:10,21 lay 76:24 83:20 location 97:1 90:12 91:22 96:5 jones 67:13,15 97:10,15 98:8 leaves 9:11 log 3:8,9,17 5:6 loop 9:6 11:16 joseph 2:5 99:25 lee 1:22 101:4,18 13:20 16:24 lose 6:25 judge 4:16 5:19,22 know 21:16 22:8 left 7:16 42:13 17:14 18:24 lost 95:15 5:22,24 6:1,9,11 25:14,20,23 58:25 19:12 22:12,13 lot 57:14,19 58:23 6:14,15,17,24 7:1 32:12 33:12,14 legal 18:17 25:15 22:14,18,19,21 63:19 64:23 7:7,7,13,14,15,18 33:25 34:16 35:1 29:11,18 48:2 22:23 23:4,6,10 68:11 69:6 70:23 7:18,22,25,25 8:5 36:21,22 42:5 77:21 84:9,17,19 23:15 24:2 25:13 72:8 73:10,20 8:13,16,17,17,18 46:19 48:18 86:17 88:21,22 25:17 31:22 32:3 83:1 86:13 87:8 8:25 9:2,3,3,4,5,6 49:14 53:5 57:7 legally 22:21 32:15,17,25 33:6 89:21 90:5 91:9 10:20 11:5,7,12 60:5,23,24 61:8 lehrman 2:8 34:21 35:10 36:5 lunch 97:23,24 11:13,14,16 61:23 66:8,18,20 lengthen 84:24 36:11 37:14,15 lynott 1:22 101:4 12:23 13:1,4,6,7 67:21 69:5 71:25 lengthy 31:21 38:9,14,15,25 101:18 13:8,10,13 16:1,1 73:22 74:4,9,10 letter 4:10 5:17,18 39:19 41:3 42:15 M 16:13,17,20 17:7 74:17 77:8,9,19 5:21 34:15 59:22 43:11,20,22 44:1 machinations 6:18 17:8 18:10,13,14 78:16 81:3,6 67:12 44:5,17,18 45:10 18:16 19:4,8,18 82:18 87:1 89:4 letters 69:7 45:1246:1,15 majority 57:15 19:21 20:4,16 89:19 90:3,3,16 lieu 43:11 49:5 50:3,11 51:6 70:24 21:3 39:16,21,23 91:7,19 92:4,17 filly 2:4 12:9,10 51:7,10,16,17,22 making 12:19 16:2 43:5 70:17 96:1 92:19 95:3 97:16 96:23 52:10 55:11,12 25:3 98:1,17 knowing 27:15,16 tinder 34:24 56:21 58:3,12,14 management 19:4 judges 12:18,19 34:6 67:15 85:5 line 40:1 47:4 61:2,6,9,12 62:17 20:23 13:15 43:5 knowledge 39:11 linebyline 57:21 63:3,4,16 67:5 manner 60:19 judicial 1:6 knows 12:3 39:5 list 23:21 31:21 69:5,17,19,21,24 march 1:17 July 4:15 kretschmar 34:20 68:14 73:15,16 70:1,4,4,5 71:6 martin 2:16 11:19 June 101:20 73:21 74:23 75:2 72:10,17,22,25 marty 11:23 12:5,9 L jurisdiction 19:8 85:24 86:3 87:15 79:23 88:4,23,24 13:17 lack 30:4 19:15,23,24 87:24 89:18,22 89:23 93:22,24 master 1:3 3:3,23 justice 52:17 lakes 1:19 2:13 90:21,23 91:2,2,7 long 12:18 38:7,20 3:25 4:9 5:8,10 language 52:21 91:14 92:4,9,13 38:22 63:10 6:20 7:3 8:21 9:8 K large 93:2 93:1,3,9 65:20 71:3 72:16 9:10,14 10:3,6,16 katherine 67:20,20 late 32:4 listed 22:23 24:14 72:16 73:7,16 10:25 12:2,14,16 67:21,23 68:1,15 latest 97:18 29:1 47:14 67:22 75:1 89:14 12:25 13:19,24 80:22 81:4 82:7,8 lauderdale 1:25 listing 34:10 68:15 longer 57:16 71:18 14:1,6,9,14,21,25 83:7,8,18 84:4 2:7,10 68:20 83:1 15:8,1916:9,19 85:6 law 23:8,18 26:23 lists 30:20 look 3:7 13:19 33:9 17:20 22:11 kathy 74:4 29:2,17,18 31:13 litigant 50:7 39:6 43:15 55:7 23:21 24:21 25:1 kept 54:9 31:24 37:16 38:3 litigation 1:8 26:6 67:6,13 68:7 35:16,22 36:3 kid 97:10 38:6 41:2,5 42:21 27:9,17,21 28:3 70:17 83:10 85:8 37:18 39:13 40:8 kind 5:7 6:5 89:22 51:24 52:25 30:1 48:4 77:20 85:11 91:3 92:7 40:15 41:17 kinds 9:15 57:2 53:21 55:1 58:16 79:1,3,4,5,6,8 looking 5:17 15:25 44:12 46:21 47:9 knight 2:5 4:1,14 59:15 62:3 67:25 48:16,24 49:8 United Reporting, Inc. (954) 525- 2221 EFTA00621596 Page 110 51:2,1255:22 member 25:12 98:1999:16 90:13 obtained 26:5,15 56:16 57:23 58:1 memo 44:24 52:12 101:17 nonprivilege 89:1 37:5 58:19 60:7 61:4 55:9 82:20 85:7 named 29:20 73:9 normally 41:2 obviate 79:13 61:21 62:9,22 memorandum 87:24 88:1 70:10 obvious 13:13 63:25 64:3,6,22 22:17 61:15,16 names 73:5,8,18 nos 89:1 obviously 4:14 65:19 66:5 67:9 61:17 62:3 73:18,20 90:15 notary 101:19,20 13:23 51:18 80:8 67:18 68:6,12,14 memorandums narrow 51:5 73:3 note 4:21 81:18 68:19,22 69:16 31:3 81:2 notes 101:12 occasioned 40:12 71:10,15,19,23 mental 26:8 narrowed 81:19 notice 21:2028:24 40:13 73:7,14,21 74:12 mentioned 12:16 nature 19:11 42:3 98:22 october 40:19 74:25 75:2,8,16 31:4 73:11 necessarily 6:4,7 noticed 19:3 21:7 odds 37:15 78:4 79:21 80:3 merit 1:22 101:5 7:4 10:25 15:19 21:11 22:7,10 offer 21:17 22:7 82:3,23 84:7,16 merits 17:10 18:5 16:5 40:8,23 64:17 95:7 47:2 85:9,22,24 86:3,3 met 46:9 54:2 61:2 57:18 61:6 65:3 notwithstanding offered 21:21 47:1 86:20 87:15,23 method 58:18 73:15 83:21 19:21 offering 10:1,16 88:10,20 89:18 85:20 91:13 number 27:5 91:13 14:12,13 90:8,19,21 91:10 middle 97:1 necessary 55:11 92:25 95:24 office 94:8 92:3,4,12,22 93:9 mini 95:1 57:9 67:7 offtherecord 10:13 0 95:17 96:6,13,23 minute 64:11 necessity 38:8 oh 14:9 object 42:9 59:21 96:25 97:4,12,19 misconduct 50:25 need 3:12 4:3,18 okay 22:5 25:1 97:2598:5,7,9,14 misled 74:1 5:2417:14,16,19 66:4 48:1694:14 98:16,25 99:5,11 missed 13:18 55:20 26:13 33:5,11 objected 37:7 once 11:4 16:10 masters 14:16 74:23 39:22,22 43:20 56:21 37:5 44:17 58:25 material 29:6 missing 67:5 43:22,25 51:20 objecting 39:4 63:2 70:19 76:9 43:17 45:11 mixed 84:19 53:8,11 56:11 objection 11:8,9,10 77:24 78:15,23 materiality 39:8 modifies 14:20 57:20 61:12 27:6 31:8 36:14 79:9 81:2 86:25 matter 6:10 19:2 modify 39:22 65:21 73:3 75:9 37:1,22,24,25 onerous 89:24 20:4 21:6,7,10 molestation 36:2 75:14 77:8,9,10 38:11,14,21 ones 7:2 50:24 22:6 34:7 35:25 moment 11:12 77:23 78:1 83:10 40:21,25 41:2,19 72:13 74:17,17 64:24 47:9 51:15 83:15 85:10 87:6 41:22,23 42:9,10 92:18 93:12 94:3 matters 3:4 19:18 momentum 6:25 87:16,21 89:9 42:13,14 43:3 94:3 20:2 28:5 54:14 monday 86:7 91:7 92:17,19 52:9 70:2,4,5,5 ongoing 54:14 mean 59:13 64:10 95:22 98:1 75:15,19 76:1 open 3:5 69:20 72:20 95:1 months 4:21 32:4 needed 83:14 87:16 opinion 26:21,25 95:3 62:19 63:14 70:6 needs 3:10 22:15 objections 4:19 52:20 61:8,11,17 meaningful 32:18 morning 11:24 28:1 44:11 99:23 13:3,3 14:18,19 opportunities 24:1 60:12 62:6,7,12 12:6,13 71:12 neglects 59:9 32:18,22 37:3 opportunity 23:3 73:3 move 16:25 42:24 neither 101:13 39:8,10 41:11,15 32:12 65:6 66:15 means 11:13 22:8 63:2,7,7 87:18 never 46:24 72:21 41:15,16 47:5,6 75:10,12 77:25 66:7 91:9 nevertheless 40:25 47:15 62:7 71:2 opposed 6:10 mediation 96:17 multiple 35:18 91:16 75:19,20 82:15 87:12 meet 33:2 50:8,10 42:16 new 40:14 70:4,5 obligation 46:9 opposing 49:25 78:13 97:1 nice 86:10 50:4,9,11 52:24 53:18 55:1 meeting 1:3 3:2,7 N — nonapplicability obligations 50:14 55:16 82:19 100:3 101:7 name 16:3 47:24 %7:11 obliged 45:22 order 14:2,3,5 meets 47:20 74:22 88:14 92:9 92:10 93:11 nonconfidential 46:20 obtain 26:14 41:12 15:23 16:19 19:5 United Reporting, Inc. 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(954) 525- 2221 EFTA00621599 Page 113 regarding 33:20 53:24 registered 1:22,23 101:5 regularlyschedu... reporters 101:1 reporting 1:24 representations 8:5,15 represented 50:22 respectfully 7:20 27:4 77:24 89:17 respond 46:8 55:21 response 3:25 rings 10:12 11:18 rmr 101:18 road 51:3 63:12 robert 1:3 12:14 rodriguez 64:7 satisfy 60:18 69:19 saturday 99:3,4,6 saving 77:4 saying 6:20,22 7:6 7:21 15:24 18:19 54:10 65:9 60:25 74:5 35:16 56:6 role 6:911:2 25:23 20:16,17 21:5 reject 10:23 representing 84:4 responses 4:12 rosemary 52:17 47:11,13 56:20 rejected 21:23,25 84:6 42:16 roster 74:20 64:22 65:16 rejection 15:7 represents 50:21 result 32:23 rothstein 1:13 68:25 69:17 rejects 14:20 request 3:11,12,22 results 31:23 33:15,20,24 34:6 70:23 73:21 80:6 related 34:7 4:5 21:14 38:1,2 return 99:14 49:22 81:16 84:16 87:9 101:14 39:21 41:13,18 revea158:12,14 rothsteins 33:24 88:21,23 91:12 relates 25:18 26:4 89:17,25 revealed 58:7 34:4 93:14 26:7 33:22 requested 5:5 revealing 25:22 rpr 101:18 says 33:9 48:18 relating 19:11,17 30:22 60:19 rule 13:13 20:2 59:10 60:18 28:13 34:8,15 requesting 26:16 review 20:17 47:2 59:8,8,9,10 60:16 scarola 1:18 2:12 35:3 44:8 92:7 48:22 62:6,12 60:18 62:8 64:19 2:12 3:20 4:5 5:1 relationship 23:12 requests 4:15 8:12 70:16,17,18 71:2 6:8 7:20 9:17 25:24 require 15:23 38:8 79:20 89:20 ruled 7:22 37:25 10:10,15 12:11 relative 17:5 42:14 46:16 reviewing 17:16 rules 11:10 14:19 12:11 13:21 14:4 relatively 40:1 58:14 62:4 70:21 rey 4:16 5:20,22 32:19 41:25 14:10 16:7,21 69:25 83:3,5,12 86:13 6:11,17 7:1,25,25 59:11,12 76:18 17:18 18:19 19:6 release 47:24 required 36:6 8:13,17 9:3,4 76:24 83:16,20 19:16 20:15,25 released 57:11 60:15 61:7 11:12,14 13:5,7,8 ruling 5:3 8:6 13:2 21:6,10,16 30:25 81:12 requirement 5:6 19:8,18,21 20:4 16:12,12 17:8 31:7 35:17,25 relevancy 31:1,10 36:10 59:8 60:15 39:16,21,24 18:1,2,3,7 85:17 36:5 39:1 41:7 39:7 41:15 71:2 60:16 70:17 98:1 rulings 9:19,21 42:16 45:5 46:25 relevant 29:6 requirements right 3:4 6:8,24,25 10:2,2,21 12:19 48:2,17 49:7,9 43:17 52:20 22:18 23:5 32:19 7:12 9:5 11:3,11 12:20 51:8,18 55:23 56:14 33:2 54:1 55:10 11:15 13:20 run 63:10 65:20 56:8,19 59:7 rely 31:18 59:23 20:13 30:12,18 60:17,25 68:21 S relying 35:9 requires 26:23 31:14,19 36:23 74:20 75:3 82:2,4 sake 16:11 77:15 remembered 36:17 41:19 53:1 59:15 38:10 40:145:23 83:24 84:15 85:1 remotely 33:2 84:20 48:25 51:14 77:15 86:17 87:19 90:6 rendering 25:15 requiring 28:4 52:11,13 53:1,2,3 sanchez 2:4 12:9,9 93:21 95:25 96:7 renew 3:22 87:15 53:4,7,10 58:2 35:21 57:22 96:16,19 97:3,24 repeat 60:3 resolution 3:12 6:9 63:18 64:11,11 63:21 64:2,5,20 99:24 repeatedly 4:6 15:3 18:8,9 64:13,19 65:16 65:18 66:2 67:2 scarolas 4:22 21:22,22 36:8 resolve 9:1 38:24 65:18 67:2,17 67:17 69:4 71:3,9 59:19 repetitive 73:20 62:23 63:17 84:8 68:18 73:14 71:17,22 73:1 schedules 86:9 report 13:4 14:17 84:17,21 74:14 76:11 80:4 75:4 86:1 88:8 97:11 14:20 98:6,7,11 resolved 14:24 81:22 82:6 83:25 93:18,22 94:1,14 scheme 34:4,7,9,17 98:23 99:20 15:4 18:6 20:11 87:23 91:3 92:12 94:23 95:21 34:18,25 95:15 reporter 1:22,23 38:5 92:23 99:15,18 96:24 97:17 99:9 scope 37:7,9 1:23 64:14,14 respect 7:13 19:16 rights 10:19,20 sanction 51:13 score 68:21,24 65:9 66:3 101:4,5 20:12 72:23 17:6 30:11 sanctions 3:11,13 69:2 satisfies 55:14 United Reporting, Inc. 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