EFTA00723784.pdf

IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE No.502008CA037319XXXXMB AB B.B. Plaintiff, -vs- JEFFREY EPSTEIN AND Defendants. DEFENDANTS' MOTION FOR SANCTIONS AGAINST SPENCER KUVIN, ESQUIRE, AND ALTERNATIVE MOTION TO IDENTIFY HEARING BEFORE THE HONORABLE DONALD HAFELE Tuesday, January 26, 2010 Palm Beach County Courthouse West Palm Beach, Florida 33401 8:12 - 8:35 a.m. Reported By: Cynthia Hopkins, RPR, FPR Notary Public, State of Florida Prose Court Reporting Job No.: 1052 PROSE COURT REPORTING AGENCY, INC. Electronically signod by cynthla bodkins (601 B5dffcc9.5fb5d94a•9ofo•1572d057d08f EFTA00723784 Page 2 Page 4 1 APPEARANCES: 2 On behalf of the Plaintiff, B.B.: 3 SPENCER T. KUVIN, ESQUIRE 4 6 7 On behalf' of the PLIintiff, LM., EW, Jane Doc No. I: 9 BRADLEY J. ®WARDS, ESQUIRE FARMER JAFFE, WEISSINO, EDWARDS, 10 MVOS& MUM/etPI. 11 12 13 14 15 16 17 10 19 On betalrof the Dekndants: 20 21 ROBERT D. CRITTON, JR., ESQUIRE MICHAEL J. PIKE, ESQUIRE 22 24 l k I COLEMAN, LLP 23 Phone: 25 Pbat E M tna G. MICHAEL KEENAN, ESQUIRE G. MICHAEL KEENAN P.A Page 3 1 PROCEEDINGS 2 3 THE BAILIFF: Please rise. Circuit Court 4 is in session. Honorable Donald Hafele 5 presiding. 6 THE COURT: Good morning, everybody. 7 MR. CR1TTON: Morning, Judge. 8 MR. KUVIN: Morning. Judge. 9 THE COURT: All right. Much of my evening 10 last night was taken up by reading this 11 material and following the conclusion of one 12 jury trial and the anticipated beginning of 13 another one after 8:45% this morning. I'm not 14 in a posture right now to listen to a whole lot 15 of argument here. I have spent several hours 16 of my own time reviewing these materials last 17 night. 18 And I can tell you, I will tell you a 19 couple of things before hearing any argument if 20 any is actually needed. The accusations that 21 are being leveled against both sides, and at 22 this juncture, primarily Mr. Kuvin, if they are 23 of any merit, in my view really have their 24 place in Florida Bar proceedings as opposed to 25 before this Court. 1 But I will suggest a couple of things, 2 number one, the press, both print and 3 audio-visual have jobs to do. And I recognize 4 that they have their respective positions as 5 well. The more this case is tried or pre-tried 6 before the press, the more likely it is that 7 we're not going to be able to seat a fair and 8 impartial jury in Palm Beach County. 9 The key word that I think needs to be 10 addressed and to be emphasized is one of 11 respect. First and foremost respect for the 12 entity of our judicial system; respect for each 13 individual and their right to a fair trial; 14 respect for each other as members privileged to 15 practice law in the State of Florida, and 16 understanding that both sides and all sides are 17 involved in sensitive, embarrassing, difficult 18 situations. 19 And when we lose the respect for the 20 system, that being the judicial system, when we 21 lose our respect for each other as practicing 22 lawyers and members in goods standing of the 23 Florida Bar and leaders here in Palm Beach 2 4 County as it concerns Bar activities, we erode 2 5 a confidence of the public and we bring down Page 5 1 our system of justice. I will not be a party 2 to that. 3 I don't think at this juncture that I have 4 any legal grounds to sanction anyone. And in a 5 careful review of the papers that even if 6 Mr. Kuvin's conduct is sanctionable, that the 7 quid pro quo, so to speak, would be to publish 8 the name of the Plaintiff as an alternative as 9 a sanction for any such conduct. 10 But I think that again the main focus here 11 has to be one of respect. Mr. Critton. 12 MR. CRTTTON: May it please the Court. 13 Your Honor, the purpose of the position that I 14 filed on behalf of my client directed to both 15 Mr. Kuvin and the alternate motion to identify 16 was basically to secure my client's -- to try 17 to preserve my client's right to fundamental 18 fairness and the right to ultimately obtain a 19 fair trial here in Palm Beach County. 20 This Court has told us on more than one 21 occasion that each party, whatever the facts 22 and circumstances, they are entitled to 23 fundamental fairness. Both parties are to be 24 treated with respect and both parties either 25 before this Court or a juaff entitled to a 2 (Pages 2 to 5) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cyntlea hooking (601 ) 85Mfcc9-sfb5-4941.9efe-1572d051d08f EFTA00723785 1 2 3 4 5 6 7 a 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 6 fair trial free of prejudice and bias from any poisoning of the jury pool. In this particular instance, the purpose of the motion and it was directed in large part to the publishing of the, providing of the video to Mr. Lambiet of the deposition of, the very, very, brief, the two-question deposition of Mr. Epstein which if questioned by the press and merely saying, gee, there was a deposition, he walked out it turns out on advice of counsel, not at Mr. Epstein's request, on advice of counsel he walked out of a deposition, that deposition would never be an admissible document There is nothing that occurred at that deposition other than the name and then the question about, Mr. Epstein, is it true you have an egg-shaped whatever, that would never be admissible at that point in particular where the deposition was terminated. Therefore, the purpose of giving the deposition to Mr. Lambiet had, had no purpose other than it was a media play to try to prejudice, that effectively may well prejudice my right to, my client's right to a fair trial 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 8 going to punish all 30 of you. In this instance Mr. Kuvin's response was in large part directed to other lawyers in other circumstances completely unrelated to the B.B. case. And this case, this motion and focus respectfully to the Court is on B.B., not on what else has happened in this case. There is, I have never made nor has anyone in my firm made any, not one single comment about B.B. in the press that I can find or that I could reference. There was an article Sunday in the Post, a big article about Mr. Epstein. And a number of conunents that were attributed to myself and were attributed to Mr. Luttier of my firm. I was unaware of the article. I never commented. I was unaware that the article was going in, in there. Everything that was in the article related to documents that were on file with the Court. And therefore I respectfully suggest to the Court and, and I would remind the Court — not remind the Court — or remind the Court but in a nice way, is that Mr. Edwards who is here, 1 Page 7 and that is the issue. 1 Page 9 and myself were able to agree after the public, 2 And the other issue that I raised with 2 after the publication by Mr. Kuvin of the 3 regard to Mr. Kuvin's seeking media attention, 3 Epstein deposition is an issue that came in 4 there is a First Amendment right. I am well 4 front of this Court with regard to a concern 5 aware of that under the circumstances, so I am, 5 that Mr. Edwards expressed about whether or not 6 I am aware of that. 6 we were going to publish the deposition of LM. 7 I am also aware and I am conscious of how 7 If the Court will recall and what the 8 both this Court and Judge Marra and as well 8 Court directed to both Mr. Edwards and I at 9 Linnea Johnson in terms trying to control 9 that time, and in fact we entered into an 10 discovery ordering these are the parameters, if 10 agreement and an order that said, look, neither 11 you go outside the parameters, this is what 1 11 the deposition of L.M. nor the deposition of 12 am going to do. And Judge Johnson gave wide 12 Mr. Epstein will be used for any purpose, that 13 berth to discovery. In some instances she said 13 is the video deposition. The transcript can be 14 I don't want you do that. She's controlling 14 filed in accordance with that. If you want to 15 that. 15 use the video deposition, folks, you come to 16 And in some instances wherein this 16 me. These are who you can show the video to 17 instance where we terminated the deposition of 17 under the circumstances. But you entered an 18 Mr. Epstein, the Court said I don't want you 18 order and I think it was in October. It was 19 doing that under the circumstances. 19 after and as a result of what happened with 20 And so, the focus here is not on my 20 regard to Mr. Kuvin. 21 conduct or on somebody's conduct. In this case 21 So my, my focus here is solely on what 22 it's on Mr. Kuvin's conduct. And it's not like 22 Mr. Kuvin did solely with regard to the video 23 elementary school where the teacher says where 23 deposition, of the two-question video 24 little Johnny is out of line and the teacher 24 deposition. It served no purpose. That 25 Y X says, look, little Johnny made a mistake; I am 25 deposition would never be admissible; under no 3 (Pages 6 to 9) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthis honking (601- ) 85dffcc9-51b5-494a-gete4572d057dOgf EFTA00723786 Page 10 1 circumstances was it filed in court. And its 2 sole purpose was to both create a media frenzy 3 and interest. 4 And as this Court is probably aware and as 5 we referenced in our motion, it ended up on 6 You'Ibbe under the circumstances and it was a 7 very popular item. 8 So I }mow the Court has spent a lot of 9 time reading the various information that we 10 provided. And based on what the Court 11 indicated I am not going to belabor it other 12 than to say that the conduct is, is that of 13 Mr. Kuvin, the conduct here is with regard to 14 him providing a copy of that video deposition 15 to Mr. Lambiet under the circumstances and then 16 it ends up so that anyone, any time, any Tom, 17 Dick, and Harry, can cue onto the, onto 18 Mr. Larnbiets web site and cue onto the 19 deposition which has no probative value. Its 20 only value was sensationalism and media frenzy, 21 and with regard to someone can check on 22 Mr. Kuvin and then hit his web site or find out 23 who he was. 24 Under the circumstance I think under the 25 Bitterman case whereas an attorney has acted in Page 12 1 video has a distinct impact under the 2 circumstances. The people see it. It fuels 3 the media frenzy. You will see it on Channel 4 5, Channel 12, or Channel 25. And it serves no 5 purpose in this Court or in this case other 6 than to prejudice one side or the other. 7 And with regard to the identity of B.B., I 8 will just rely on, under the circumstances she 9 and her lawyer, she and/or her lawyer have 10 allowed this case to be tried in the media. 11 With regard to B.S. I have never, as I 12 referenced earlier, I have never brought up 13 B.B. It's not my conduct or my finds conduct. 14 It's Mr. ICuvin's conduct under the 15 circumstances. 16 And I will rest with whatever the Court's 17 decision is with regards to the identity of 18 B.B. But there are other things that I could 19 say but in regard to the time that you have 20 spent, I will turn it over to Mr. Kuvin. 21 MR. KUVIN: In regard to the Court's prior 22 statement and with respect of the time Your 23 Honor has spent reviewing this motion, I don't 24 want to take up more of the Court's time. 1 25 will address the video so the record is clear. Page 11 1 bad faith, and what Mr. Kuvin, separate and 2 apart from any Bar issue — in fact I well 3 recognize that this Court nor any court does 4 not have the jurisdiction to punish under the Bar rules. That's left to the Florida Bar as I 6 understand, or actually the Supreme Cowl under 7 the circumstances. I am not asking for that, 8 but it was bad faith for Mr. Kuvin to have done 9 it under the Bitterman case. 10 All the Court is saying is I am not going 11 to tolerate that conduct just as you suggested 12 to Mr. Edwards. And I know we were agreeab:e 13 to not posting any video depositions, find that 14 the conduct of Mr. Kuvin under the 15 circumstances was in bad faith, inappropriate, 16 and grant the sanction of attorneys fees 17 against Mr. Kuvin that related to the filing 18 and the arguing of this motion, directing that, 19 just as you did in the L.M. and E.W. cases, 20 video depositions not only of the parties but 21 also of witnesses not be filed in the Court 22 file, not be shared with, other than the 23 attorneys, parties, and experts under the 24 circumstances and not file it with the Court. 25 This does not involve the transcript, but the “4 Page 13 1 In reviewing the material as I am sure you were 2 aware late last night, specifically reading the 3 Gentile case from the United States Supreme 4 Court, what struck with me is reading Justice 5 Rehnquist, and this is a case involving an 6 attorney that went to the press. He actually 7 held a press conference six months before the a trial was actually to take place. 9 And it was the Florida Bar — I'm sorry, 10 it was a Nevada Bar opinion where the Nevada 11 Bar sanctioned that criminal defense lawyer for 12 holding that press conference. 13 The United States Supreme Court reversed 14 that opinion. And what's important about that, 15 important is when I read it last night, Justice 16 Rehnquist's opinion when it says an attorney's 17 duties do not begin inside the courtroom door. 18 He or she cannot ignore the practical 19 implications of a legal proceeding for the 20 client. Just as an attorney may recommend a 21 plea bargain or civil settlement to avoid the 22 adverse consequences of a possible loss after 23 trial, so too an attorney may take reasonable 24 steps to defend a client's reputation and 25 reduce the adverse consequences of indictment 4 (Pages 10 to 13) PROSE COURT Electronically signed by cynthia hopkins (601) REPORTING AGENCY, INC. 85dffcc9.51b5.494a-9efo-1572d057d081 EFTA00723787 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 including an attempt to demonstrate in the court of pubic opinion that the client does not deserve to be tried. How I respond to that -- THE COURT: Excuse me, just a moment, please. MR. KUVIN: Yes. THE COURT: I understand that. And if an offensive was logged against your client by Defendant in a manner that would have either identified her contrary to court order and/or the protection that had already been put in place relative to her anonymity, or there would have been statements even by way of her initials by the defense that would have implicated her in some type of untoward conduct that would have been publicized, certainly 1 think that in that Gentile case there was the attempt by the lawyer to defend the reputation of the client. What Mr. Critton is commenting on is what is perceived to be taking the offensive, not defending one's client's reputation but, in fact, sharing with someone who is a gossip columnist with the Palm Beach Post a video 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 Mr. Epstein's attorneys were the ones that took the offensive and not specifically — excuse me, specifically attacking all victims. While Mr. Critton does a very good job of coming in and trying to parse out each individual girl, B.B., L.M., E.W., Jane Doe No. I, there are at least 14 current ongoing civil proceedings. And according to arrest records which were released by the Palm Beach Post absent of any attorney just as of yesterday, possibly hundreds of victims of Mr. Epstein of underage girls, hundreds. He and his attorneys have attacked all the victims as a group. They have not disseminated between whether it's B.B. or E.W. Therefore, every girl who comes before this court in a civil proceeding is tainted by the conduct and statements that are made by Mr. Epstein's attorneys, both criminal, civil, and the press. THE COURT: So, respectfully does that justify the publication to Mr. Lambiet of Mr. Epstein's aborted deposition by way of videotape? MR. KUVIN: Respectfully that deposition Page 15 Page 17 1 deposition of the Defendant where nothing was 1 was on file with the Court and there is no 2 said to my knowledge about B.B., nothing was 2 legal difference, none cited by Mr. Critton, 3 said relative to her reputation or standing in 3 none found by myself between a deposition and a 4 this community but simply for whatever 4 video. Both are synonomotts to each other. The 5 publicity could be gained from the short 5 deposition was on file with the Court prior to 6 aborted deposition. 6 any contact and albeit this contact Mr. Lambiet 7 MR. KUVIN: If I can address that. 7 made with me directly, not me to the media. 8 THE COURT: Thank you. 8 That was on file. 9 MR. KUVIN: Directly addressing that issue 9 THE COURT: The media somehow obtained the 10 statements were made about, to the press by 1 o aborted deposition of -- 11 Mr. Epstein's criminal lawyers and his civil 11 MR. KUVIN: The media — 12 lawyers such as: These women are liars; we 12 THE COURT: Let me finish, please. 13 have established that it was a childish 13 MR. KUVIN: Sure, sure. 14 performance by the Palm Beach Police 14 THE COURT: The media somehow obtained the 15 Department; there were never any victims; he 15 video deposition of Mr. Epstein absent your 16 never denied girls came to the house but passed 16 participation is what you're suggesting to me? 17 a polygraph on knowledge of age; that none of 17 MR. KUVIN: What I am suggesting is not 18 the girls were minors and their stories were 18 that the -- is that the media contacted me at 19 not credible; there was never any sex between 19 the conclusion of the deposition to find out 20 Jeffrey Epstein and underage women according to 20 what had happened. 21 lead attorney Jack Goldberger from Idaho where 21 And that same exact date I filed the 22 he was vacationing with his family. He said 22 motion for sanctions with a copy of the 23 Mr. Epstein absolutely insisted anybody who 23 transcript of the deposition in the Court file. 24 came to his house was over the age of 18. The 24 And it was public record as of the date of 25 law was not violated here. 25 deposition according to both the ethics 5 (Pages 14 to 17) PROSE COURT REPORTING AGENCY, INC. Electronically signed by Cynthia hopkins (601- ) 85cIffcc9-5fb5-494a-gele-1572d057d08f EFTA00723788 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 opinions that were cited by me in my response as well as the Gentile case. When something is public record, there is no limitation on a circulation of that information. Had Mr. Epstein himself not terminated that deposition, none of it would have been public record because there would have been no need to file it. So, while I understand the Court's admonition and I absolutely respect it and I'm to follow that every day in my practice, this was not an offensive started by me, but it was a response to the accusations landed by his attorneys against all of these women who are victims of him. But I respect the Court's opinion and obviously we'll follow that continually in this case. 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 proceedings, it may very well have an opposite effect to the ultimate outcome. I think it is best that we do our best within the confines of the rules and regulations of the Florida Bar to confine our COnsircntS to those that are permitted and to not stray beyond that. I am not reluctant, as both of you know, to issue sanctions if I see conduct that is untoward or unprofessional or that will work to erode what I believe are the basic principles of justice, and that is fundamentally the right to both parties, each party that comes before this Court, no matter their standing, no matter their accusations, to a fair trial. And again, nothing will deter this Court from that aspiration. So the motions at this point are denied. The request for sanctions is denied. The request in the alternative to identify B.B. is denied. I want to again remind each side that the Court only has a fmite time among its 1750 cases to spend on each case. And I want you to utilize that time constructively and consistent THE COURT: All right. Well, I have said most of what I needed to say already here. And I do not place my imprimatur on the conduct that was suggested here relative to the disbursement of the aborted video deposition of Mr. Epstein to the press by counsel. And I am going to order that in this case as well as any comµlanion cases involving Page 19 Page 21 1 matters brought by the Plaintiffs against 1 with my oath to serve this community in the 2 Mr. Epstein that absent Court order no 2 best possible way I can. 3 videotape depositions may be disseminated 3 So, please, in the future refrain from 4 beyond the lawyers, the parties, and any 4 filing these types of motions unless they are 5 experts that are involved in the case. 5 of critical importance to the progress of this 6 I will leave you with the following: That 6 case. Anything that needs Florida Bar 7 while I respect Justice Rehnquist's statements 7 attention should be directed to the Florida 8 in the Gentile case and while certain conduct 8 Bar. 9 may be technically permissible, it does not 9 Thank you, Gentlemen, very much for your 10 mean that we lose sight of the basic tenets of 10 courtesy. Thank you, Madam Court Reporter, as 11 justice that is to confine a trier of fact's 11 well. I wish everybody a good rest of the 12 consideration of this case to what is in this 12 week. I know I will be seeing you again later. 13 courtroom and what is learned by the trier of 13 MR. KUVIN: Your Honor, point of 14 fact within the confines of the courtroom 14 clarification. 15 itself 15 THE COURT: You may proceed with the next 16 Most of the time when doing their jobs, 16 motion. I see Mr. Silber is here and 17 the press takes positions in terms of their 17 Mr. Edwards and Mr. Keenan as well. 18 recitation of their stories, meaning that what 18 MR. KUVIN: Your Honor -- 19 you may say, as innocuous as you think it may 19 THE COURT: Mr. Kuvin. 20 be, could be far more detrimental based upon 20 MR. KUVIN: Yes, sir. Your Honor, you 21 the totality of the story than you may think 21 mentioned not being able to show my client 22 your comments are at first blush. 22 depositions? 23 So, while you may think you are helping 23 THE COURT: No, sir. I said the parties 24 your respective clients, when it comes to 24 are able to view the depositions. 25 Avalcini to the press duringpretrial 25 MR. KUVIN: Okay. 6 (Pages 18 to 21) PROSE COURT REPORTING AGENCY, INC. Electronically signed by cynthia bobbins (801-051476-2934) 854:Iftcc9-5fb5-494a-bolo-1572d057d013( EFTA00723789 Page 22 1 MR. CRITTON: Do you want us to use 2 that -- 3 MR. KUVIN: The parties, the parties' 4 attorneys and experts, and absent court order, 5 no one else. 6 MR. CRITTON: May I reduce that to writing 7 and then submit it to the Court? 8 THE COURT: Yes, sir. 9 MR. CRITTON: Thank you. 10 (The hearing was concluded.) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 23 1 CERTIFICATE 2 3 STATE OF FLORIDA 4 COUNTY OF PALM 13EACII 5 6 7 1, Cynthia Hopkins, Registered Professional 8 Reporter and Florida Professional Reporter, Slate of 9 Florida at large, certify that I was authorized to 10 and did stenographically report the foregoing 11 proceedings and that the transcript is a true and 12 complete record of my stenographic notes. 13 Dated this 31st day of January, 2010. 14 15 16 17 18 19 20 21 22 23 24 25 lob #1052 7 (Pages 22 to 23) PROSE COURT REPORTING AGENCY, INC. Electronically signed by Cynthia hopkins (601 8,5thfcc9-5155-494n-gete.1512d057dOtlf EFTA00723790