EFTA00234482.pdf

Proceedings June 10, 2009 Page 1 IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CRIMINAL DIVISION CASE NOs.: 2006-CF9454 AXX and 2008-CF9381 AXX STATE OF FLORIDA, Plaintiff, vs. JEFFREY EPSTEIN, Defendant. PROCEEDINGS HELD BEFORE THE HONORABLE JEFFREY J. COLBATH JUNE 10, 2009 11:09 A.M. - 11:25 A.M. PALM BEACH COUNTY COURTHOUSE WEST PALM BEACH, FLORIDA Reported by Louanne Rawls Notary Public, State of Florida West Palm Beach Office #100578 48693174-c473-4acb-8135-5bal 3015(02 EFTA00234482 Proceedings June 10, 2009 1 APPEARANCES: 2 On behalf of the Defendant JACK ALAN GOLDBERGER, ESQUIRE 3 Atterbury, Goldberger, et al. 250 Australian Ave. South, Suite 1400 4 West Palm Beach, FL 33401 5 On behalf of the Defendant 6 ROBERT CRITTON, JR., ESQUIRE Burman, Critton, et al. 7 515 N. Flagler Drive, Ste. 400 West Palm Beach, FL 33401.4349 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On behalf of Third Patty E.W. WILLIAM J. BERGER, ESQUIRE BRADLEY J. EDWARDS, ESQUIRE Rothstein Rosenfeld Adler 401 E. Las Olas Blvd., Suite 1650 Fort Lauderdale, FL 33394 On behalf of Third Party, The Post DEANNA SHULLMAN, ESQUIRE Thomas, LoCiero & Bralow, PL 101 N.E. 3rd Avenue Suite 1500 Fort Lauderdale, FL 33301-1181 Page 2 Pane 4 1 THE COURT: Last name is spelled? 2 MR. EDWARDS: Edwards. E-D-W-A-R-D-S. 3 THE COURT: Okay. 4 MR. OOLDBERGER: For the other side, Your Honor. 5 Jack Goldbaga along with Robert Critton on behalf of 6 Jeffity Epstein. 7 THE COURT: It is the Post's and E.W.'s Motion to 8 Intervene for the purpose of unsealing records? 9 MR. BERGER: Yes, sir. 10 111E COURT: Here's what I think I know, and I tell 11 you this so that you can fill in the gaps of what you {mow 12 that I don't know and suggest what you think 1 ought to 13 do. It appears to me that there was some agreement — an 14 agreement that was sealed and then an addendum or 15 amendment to the agreement that was sealed as to documents 16 in the Court's files under seal and it appears as though 17 the punitive interveners want to unseal those and take a 18 peak at than. I don't see where any of the proper 19 procedures to seal the documents was ever followed to 20 begin with. I don't know but it's not jumping out at me 21 when I reviewed the file. So, Pm thinking that it might 22 be appropriate and the burden might be on the moving 23 party, being the State and Mr. Epstein, to give them the 24 opportunity to jump through the hur — hoops to seal the 25 documents if they are entitled to have them sealed, then 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 29 20 21 22 23 24 25 Page 3 PROCEEDINGS BE IT REMEMBERED that the following proceedings were had and testimony adduced before the Honorable Jeffrey Col bath, at the Palm Beach County Courthouse, West Palm Bach, Florida beginning at the hour of I I:08 a.m. on June 10,2009. with appearances as herein noted to-wit THE COURT: State vs. Epstein. Let me have for the record, announce everybodys appearanee. MR. BERGER: Your Honor. William J. Berger and Bradley Edwards for non-party E.W. MS. SHULLMAN: Your Honor, Deanna Shullmun of Thomas, LoCicro & Bralow for non-party The Palm Beach Post. T71E COURT: Let me slow down a little bit. On behalf of The Post is? MS. SHULLMAN: Deanna Shulman. THE COURT: S-H-U-L — MS. SHULLMAN: THE COURT: Ms. Shullman, good morning. Mr. Berger, good morning, And Mr. Barr, your client is E — MR. BERGER: E.W.. yes. THE COURT: Anybody else has? MR. EDWARDS: Brad Edwards on behalf of E.W. as well, Judge. Thanks. Page 5 1 NI grant that request. If they're not entitled to seal 2 then I'll order it as documents unsealed. But that's kind 3 of procedurally where I think the case is. I will allow 4 Mr. Berger and Ms. Shulhnan to argue if they wish to, 5 otherwise I will go over to Mr. Goldberger and Mr. Critton 6 to perhaps talk about what they think about my suggestion. 7 Mr. Berger? 8 MR. BERGER: I — Ed like to hear what they say. 9 THE COURT: Ms. Shullinan? 10 MS. SHULLMAN: Agreed. 11 THE COURT: Mr. Goldberger? 12 MR. GOLDBERGER: Your Honor — 13 THE COURT: I mean, it looks like theyjag handed 14 up an Agreed Order to sign. 15 MR. GOLDBERGER: Well, if the Court — I know the 16 Court is trying to short circuit here and the idea in 17 theory is not horrible, ifs not terrible, ifs actually 18 not so bad. But let me alert the Court to a couple of 19 issues. First of all, this is not something that came up 20 ahead of time where we were moving to close a hearing or 21 file documents under seal and the Rules of Judicial 22 Administration makes an important distinction between 23 things that are done in advance and things that come up 2 4 during a hearing and the fact that maybe it goes to the 2 5 Rule talk about situations that arise during the course I.I.W41••••••••••{A.V.W0}.46,.. 2 (Pages 2 to 5) 48693174-073-4acb-8135-6belkafd92 EFTA00234483 Proceedings June 10, 2009 Page 6 Page 8 1 of a hearing, that the Rules would not apply to that. 1 a hearing and do the balancing test where you look at 2 Secondly, E.W.'s Motion to Intervene is brought under a 2 whether there is some compelling government interest and 3 Rule that does not apply her-once she brought it under a 3 that's going to require an evidentiary hearing. So I have .1 Rule that applies to noncriminal cases Having said that 4 no great objection to filing the Request for Closure and I know the Court's des re to get to the issues here and I 5 5 then have a hearing in front of the Court 0 just need to alert the Court to one other matter because I 6 THE COURT: Well, let's do — Pm thinking out loud. 7 think it's really important. The Plaintiffs, E.W., has 7 I'm not ruling. I will give you all a chance to argue 8 this agreement already. They have this agreement Counsel 8 further, but this is what I'm thinking I will do, grant 9 will tell you they have this agreement. There have been 9 the Motion to Intervene. It gives standing to E.W. It 10 two hearings in front of Judge Marra who has the Federal 10 gives standing to The Post to contest the fact that these 11 cases here. They moved to unseal the non-prosecution 11 were sealed. And then I will shift the burden back on the 12 agreement in front of Judge Marra He entered an initial 12 State and Defendant, Mr. Epstein, to petition the Court to 13 Order, a very, very well reasoned Order which I have a 13 seal these documents. Until such time that I rule on that 14 copy for the Court. 14 I will leave than under seal because they might have been 15 THE COURT: Oh, thanks. 15 correctly sealed but the procedure wasn't followed. 16 MR. GOLDBERGER: He entered a very, very well 16 Theres got to be notice. You've got to comply with the 17 17 Administrative Order 2.303. You've got to comply with the reasoned Order weighing the interest of the Plaintiffs to 18 have access to the non-prosecution agreement with the 18 Rule of Judicial Administration 2.420(d). I think even 19 confidentiality that the parties intended to be part of 19 though that's a civil — it addresses a civil matter this 20 this agreement And what he did, he said they can have 20 is, you know, in the nature of a civil procedure. So, III 21 this agreement They can review it all they want If they 21 do that. And thank you for these Orders. So. where do we 22 want to review it with somebody else, they need to give 22 go from here? I'm thinking out loud, not ruling. Mr. 23 them a copy of this Order dud it is not to be disclosed 23 Berger? 24 to anyone else. Subsequent to that — so that's the Rule 24 MR. BERGER: Judge, with all due respect I 25 that's in place right now. Subsequent to that the 25 completely disagree with counsel's characterization of Page 7 Page 9 1 Plaintiffs went back and said we want to disseminate this 1 those two Orders. I don't know if he handed up both to 2 Order. We want to disseminate this agreement to other 2 you? 3 parties and Judge Mann entered a second Order denying 3 THE COURT: I do. 4 that request and said, no. My Order is in place but if you 4 MR. BERGER: They simply do not say what he tells 5 have some compelling memo why you want this agreement to 5 you they say. 6 be disseminated to others, file a motion and come back to 6 THE COURT: I'll read than — 7 me. 7 MR. BERGER: All right 8 THE COURT: This is as a result of some civil 8 THE COURT: — and I'll allow you to make that 9 litigation pending in the Federal Courthouse? 9 argument — 10 MR. GOLDBERGER: Yes. 10 MR. BERGER: And — and — 11 THE COURT: As opposed to any criminal prosecution 11 THE COURT: — at the time of the Renewed Motion to 12 going on? 12 Seal. 13 MR. GOLDBERGER: It is civil proceedings that arc 13 MR. BERGER: All right And, also, I don't think the 14 going on in Federal Court. But in the interest of comedy, 14 Court —1 think the Court needs to deal with this 15 Your Honor, the Court has rated on the confidentiality 15 immediately, expeditiously. This is a matter that the 16 agreement and has put assail reasoned procedure into 16 Supreme Court has placed incredible scrutiny over. And the 17 place. If the parties want that agreement unsealed where 17 Rule that we are traveling under — were not only 18 they need to go is go back to Federal Court and Judge 18 traveling under a Rule of Judicial Administration that 19 Marra invited them to do so. 19 applies to criminal and civil cases, we're applying to an 20 THE COURT: That may be as it pertains to E.W., but 20 Administrative Order of this Court that was in place when 21 what about The Post? 21 the sealing was done and that superseded the sealing. 22 MR. GOLDBERGER: I think — and I think I know where 22 THE COURT: I — 23 the Court is going on this. If The Post's position is the 23 MR. BERGER: I'm just saying. I respectfully request 24 public has right to acre — access to this then there is a 24 that the Court not delay this one minute. 25 procedure in place and ultimately the Court has to conduct 25 TIlE COURT: You've got the agreements 3 (Pages 6 to 9) 488931744.473-4acb-8135-5ba13e156:192 EFTA00234484 Proceedings June 10, 2009 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 MR. BERGER: Pardon me? THE COURT: You've got the agreements anyway. You've got what's under sett MR. BERGER: Judge, we cannot do anything with them. THE COURT: Take that up with Judge Man MR. BERGER: No, sir. That is not what the Order says. May I quote Judge Marra. "If a specific tangible need arises in a civil case the relief should be sought in that case." In other words, the civil cases which are in front of Judge Hafek is one forum that Judge Main said go to it Judge Marra did not say that this Cowl does not have jurisdiction to unseal its own sealed records or to vacate its own Order sealing. And any characterization is — is false. THE COURT: rE take a look at it and I'll draw from it what It says — what I think it says. I appreciate your zealous representation of your client. Please, it appears as though you're yelling at me. MS. SHULLMAN: Your Honor? THE COURT: Ms. Shullman? MR. BERGER: Judge, this happens to be a very serious matter and every day of delay delays our discovery. THE COURT: Ms. Skillman? MS. SHULLMAN: Your Honor, if I may be heard on the 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 proems and let's get this back on my docket as quickly as possible and give them until Friday to file their notice and ten days after that we have an evidentiary hearing. I go through the prams then. What bad thing is going to happen by waiting these extra twelve to fifteen days? MS. SHULLMAN: The bad thing that's going to happen, Your Honor, is that the status quo in Florida is thin the constitutional right of access is openness. THE COURT: Right. MS. SHULLMAN: You know, certainly if Your Mau a inclined to postpone this hearing I would ask that it be done expeditiously as you suggest THE COURT: Yeah. MS. SHULLMAN: You know, Friday and then ten d it • thereafter, it just delays access for another two weeks and it Infringes on ow rights. TEE COURT: I agree. Mr. Berger, I will let you answer that same question. MR. BERGER: I dont think — illE COURT: Anything specific rather than — MR. BERGER: Yes. THE COURT: You know, anything closed that the people are allowed to look at is a transgression and any transgression is bad. but anything unique beyond that? MR. BERGER: Your Honor — Your Honor, I do not Page 11 Page 13 1 issue as wet As a representative of the public's right 1 believe that this Court has the jurisdiction to revisit 2 of access — 2 the propriety of the sealing of these records and give the 3 THE COURT: Right. 3 Defendant or the State, for that matter, a second bite at 4 MS. SHULLMAN: — here essentially, I would agree 4 the apple. If the records are sealed improperly, which the 5 with Mr. Berger that we need an immediate hearing on this 5 Court has said on its face that appears to have occurred, 6 issue. That's what we're here to do today. I think I heard 6 I do not believe that this Cotut has jurisdiction to allow 7 Your Honor say that he's not clear that the procedures 7 them a second bite at the apple to go through with the 8 were applied. My review of the record does not reveal that 8 notice requirements. They should have done that in front 9 the procedures were complied with. My review is similar to 9 of Judge Pool llo a year ago and they did not do it. The 10 Your Hanoi's. It looks like sort of everybody approached 10 Rule of Judicial Administration 2.420 simply does not give 11 the bench and Judge Pucillo said let's take it under seal. 11 this Court the right to reactivate the procedure that you If Mr. Epstein's counsel is not prepared to go forward 12 12 outlined. 13 today and meet his burden, then I would ask that this 13 THE COURT: Okay. 14 Court seta hearing as soon as practical because the right 14 MR. BERGER: Thank you. 15 solution here should be to unseal the records and then, 15 THE COURT: Anything further, Mr. Goldbager or \II 16 you know- 16 Craton? 17 THE COURT: I've gotcha 17 MR. GOLDBERGER: Just note, Your Honor, as far as 18 MS. SHULLMAN: — and they have to make a motion. 18 the timing of this and we want to do this expeditiously, 19 THE COURT: Well what house is on fire? I mean, 19 of course, this sealing occurred not last week, not two 20 what is the —1 think what they have to do is they've got 20 weeks ago, not four months ago but eleven and one half 21 to give ten days notice pursuant to the Rule — the 21 months ago. The Post reported this last July. So, I 22 Administrative Order, Rules of Judicial Administration, to 22 understand the right for the pubic to have access and we 23 go through that process. What — what prejudice is there? 23 want to do this as quickly as possible but there is no 24 What house is burning down if I say okay. State and 24 fire here. There is no house burning. 25 defense, go ahead and expeditiously move through the 25 THE COURT: Then I'll go ahead and enter an Order .1 4 (Pages 10 to 13) 48693174-c473-4acb-8135-5ba13 915109 2 EFTA00234485 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Proceedings June 10, 2009 Page 14 I've indicated, that is that I'll grant the Intervener's 2 Motion to Intervene. You have standing. I will order that 3 the State and/or the defense by noon Friday file a Notice 4 of— comply with the Administrative Order 2.303 and the 5 Judicial Rule — the Rule of Judicial Administration 6 2.420, paragraph d, that outlines the procedures to seal 7 files in these types of cases and then we'll get a hearing 8 scheduled for argument on whether or not they will be 9 sealed. Until that time they will remain sealed because 10 Judge Pucillo signed off on the Order and I'm not inclined 11 to disturb that until I find more about the merits of the 12 movanfs position. 13 MR. GOLDBERGER: Thank you. 14 THE COURT: Anybody want to reduce any of that mess 15 to a written Order? 16 MR. EDWARDS: I'd like to Your Honor. I'd like to 17 know if you're going to give in a hearing date today. 18 THE COURT: Ill deal with that. Yeah. Let me give 19 you some time. How much time do you think it's going to 20 take? I don't think I'm going to have any surprises. How 23. much time do you think we need? A half hour? 22 MR. EDWARDS: Not more. Ed say an hour at the 23 longest. 24 THE COURT: I'm not taking evidence or anything like 25 that In the meantime, do you agree it would be prudent 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 CERTIFICATE UANNE RAWLS, certify that I was authorized to ly report the foregoing proceedings and that the trtf#ript inajtfue and complete record of my notes. ,, gafith 19ett daY WL er 1/49 % 63‘ 1: kfrIp ocy 61:24/ June, 2009. 578 <9 C4 I§ 00 I- Ots, oli ts to . Ofr O,‹ Z eir `ar.le Page 15 1 for me to take a look and see what the content of these things are so I can be articulate on what their know about? I didn't do that for today's hearing? MR. GOLDBEItGER: The defense — MIL EDWARDS: The non-prosecution agreement? THE COURT: Right. Whatever is under seal. Whatever it is that's under seal Ill take a look stirs° that I can at least have a feel for apparently what you all know and I don't. MR. GOLDBERGER; The defense has no objection. THE COURT: Okay. FR go ahead and read those two sealed documents and I'll see you back hut, assuming that Mr. Goldberger and Mr. Canon get that done between now and Friday. Ten days from this Friday is the 22nd. How about we do this on the 25th at 130? MR. GOLDBERGER: One moment, Your Honor. That's fine with me. MR. BEItGER: Thank you. THE COURT: All right. Great. Thank you so much. NIL GOLDBERGER: Thank you, Judge. (PROCEEDINGS CONCLUDED) 5 (Pages 14 to 16) 48693174-c473-4acb-813.5-5bal3etSfd92 EFTA00234486