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MR. LINK: I know we're not. 
THE COURT: -- this isn't a motion for 
summary judgment. 
MR. LINK: It's not. But I wanted to 
answer the Court's question. 
I think it's really important, Judge, 
as we go forward, that we differentiate the 
element of probable cause and the element of 
malice. Because you are exactly right. 
When you get to item five, malice, what's 
his intent to hurt Mr. Edwards. That is 
absolutely relevant for the jury's 
determination. No question. Okay. It is. 
But it is not relevant to whether there was 
a lack of probable cause. And that's a 
balance that we have here because --
THE COURT: What's not relevant in the 
absence of probable cause? Are you talking 
about malice? 
MR. LINK: Malice. Intent. We will 
show you cases, Your Honor, where it says if 
you have probable cause and you have malice, 
there's no claim for malicious prosecution. 
You only look at malice once you've 
established probable cause. You can't use 
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malice to establish probable cause. You 
can, on the other hand, use probable cause 
to establish malice. 
THE COURT: I understand. 
MR. LINK: That makes sense? 
THE COURT: I understand you 
completely. 
MR. LINK: The reason that's important 
is because if you combine -- if you say, 
What's in his mind? How is he trying to 
hurt this guy? When he's reviewing the 
Razorback complaint, the U.S. Attorney's 
statement, and the newspapers articles that 
are out there, then you are combining malice 
and probable cause. 
So, that's what we have to avoid. It's 
really critical, and here is why. 
By the way, I want for the Court to 
know I really appreciate the hard work that 
Mr. Edwards' team has put in. They did a 
lot of writing. We did a lot of writing. 
We have crystalized the issues for this 
Court's determination. 
So one of the things that Mr. Edwards 
tells us in his response to our motion in 
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limine, he wants to tell us how he's going 
to try this case. And here is what he says. 
"Edwards starts by proving the truth of the 
claims he brought on behalf of his three 
clients." 
That evidence, Your Honor, if this case 
hadn't settled, would absolutely have been 
relevant to that trial, without a question. 
Every -- I shouldn't say every -- many 
of the questions that were asked of 
Mr. Epstein that he took the Fifth to very 
well could have been relevant to this 
lawsuit, okay? But the truth of the 
allegations that they were making has 
nothing to do with what Mr. Epstein reviewed 
in 2009 before he brought the suit. 
There's nothing that's in their mind or 
that happened to them that can have 
influenced Mr. Epstein when he was reading 
the material. 
THE COURT: So what you're suggesting, 
though, Mr. Link, is that there could never 
be a successful plaintiff in a malicious 
prosecution case. 
MR. LINK: No, sir. I'm not suggesting 
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that at all. I will give you an example. 
What if this lawsuit was filed and there 
were two articles that existed that said 
that Mr. Edwards had nothing to do with the 
Ponzi scheme. And Mr. Epstein, in looking 
at the information that was available, took 
that information -- or he knew Mr. Edwards 
wasn't involved at all in any way -- and I'm 
not telling you that Mr. Edwards was. I am 
saying based on the information at that 
time --
THE COURT: Where was that information, 
by the way, that suggests Mr. Edwards had 
involvement? 
MR. LINK: The information that 
suggests that he had involvement is this. 
MS. ROCKENBACH: Your Honor, may I 
approach? I have a copy that might be 
better for the Court. I shared this with 
Mr. Scarola yesterday. 
MR. LINK: Your Honor asked a great 
question. It is without a doubt nothing in 
the press or the U.S. Attorney's office or 
anywhere else that comes out before 
Mr. Rothstein goes down that connects 
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directly Mr. Edwards to the Ponzi scheme. 
It does not. 
So what we have to then look at is this 
information. So you have as your 
backdrop -- put yourself in Mr. Epstein's 
shoes for a minute. You have as a backdrop 
your reading that the three cases that you 
have are being used to solicit investors, 
and you're being told that you have already 
offered a $30 million settlement, which was 
untrue. That you've already agreed to pay 
$200 million, which was untrue. That there 
were 50 other claimants out there at the 
Rothstein firm, which were untrue. And you 
read all of that, and then you start 
thinking about what's happened in the 
litigation against you. 
In the litigation against you, you 
start to see things that are different from 
when Mr. Edwards was a sole practitioner. 
THE COURT: Freeze that phrase for a 
moment. 
MR. LINK: Yes, sir. 
THE COURT: When you think about the 
litigation that was brought against you --
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when you are saying what Mr. Edwards brought 
against Mr. Epstein, correct? 
MR. LINK: Yes, sir. 
THE COURT: Very well. 
MR. LINK: Yes, sir. That's what I'm 
talking about. 
THE COURT: I want to make sure that 
that is what you're saying. 
MR. LINK: We're on the same page. 
Edwards' clients versus Mr. Epstein. 
And you look at the time period that 
Mr. Edwards is at Rothstein's -- this is 
really the question. I think it's a legal 
question. The question is, was there 
sufficient smoke for you to think there 
could be fire? Was there sufficient 
information that you could draw a reasonable 
inference from that would allow you to bring 
a civil claim? And here is what we see. We 
see many different things that happened. 
So, for example, all of a sudden you 
have Mr. Edwards and his team saying they 
want to depose Donald Trump, Bill Clinton. 
And there wasn't any testimony from the 
three folks that Mr. Edwards represented 
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that they had any contact with Mr. Clinton 
or Mr. Trump, or any of the other folks that 
they said they wanted to depose. 
The three folks that Mr. Edwards 
represented never said they were on one of 
Mr. Epstein's planes, yet they spent 12 
hours deposing Mr. Epstein's pilot and 
didn't ask a single question about 
Mr. Edwards' clients. 
He had a state court case filed on 
behalf of L.M. He then files a 234-page 
federal court complaint with 100-and-some 
counts that he never serves. 
He then files a motion for fraudulent 
transfer in the federal case saying 
Mr. Epstein is fraudulently transferring 
assets, and lists in there all these assets 
he has. And Judge Marra denies it and says 
this was brought without any evidence 
whatsoever. 
So if you look at these things that 
happened, and you now have them in the 
context of, wait a minute, I just read that 
Rothstein was telling folks that these cases 
were worth $500 million, and Mr. Epstein has 
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already offered $200 million. And that's 
not enough. We are going to get more. 
If you are Mr. Epstein, you start 
thinking, Well, was all of this stuff being 
done to generate information to show the 
investors in the Ponzi scheme? Then we know 
that the flight logs that came from the 
pilots, that had nothing to do with the 
three plaintiffs that Mr. Edwards used were 
used by Rothstein to show investors. 
THE COURT: But couldn't that same 
information, Mr. Link, serve the 
counter-plaintiff as well as it might serve 
Mr. Epstein, which creates a potentially 
classic jury question? And that is, that 
all of these things that were done -- the 
inconveniencing of his pilots, the 
inconveniencing of his high-level friends, 
the implications of these high-level 
friends -- all of these things that were 
done to anger Mr. Epstein at or around the 
time, if my memory serves, when these cases 
were being settled -- doesn't that serve 
them just as well to create an issue of 
probable cause as it does your client to 
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say, Well, all of these things were done? 
And it then gets us back to what I 
earlier asked, and that is, even if that's 
taken as true, even if Rothstein was pumping 
these cases up and claiming to these 
investors that it was then publicly known 
through primarily the press, media was 
swarming -- as they should have been -- over 
this absolute criminal act, the likes of 
which, from an economic standpoint, from a 
private individual, perhaps has still never 
been seen before, other than Mr. Madoff in 
New York. 
But the point I'm trying to make is, it 
still gets me back to that same question. 
Yeah, Mr. Epstein may have been angry, he 
may have been concerned about his friends, 
the high-level people that he associated 
with, and how this could drag him down as 
well as them. Certainly a bona fide 
concern, perhaps. 
But then it gets to the question, yeah, 
with all of that, it still gets me to my 
original question and what the jury is going 
to be asking, more importantly, how was 
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Mr. Epstein damaged as a result of this 
activity? 
MR. LINK: May I answer that question? 
But then I have to weave back, because you 
gave me something I have got to talk about. 
THE COURT: Sure. 
MR. LINK: The damage that he felt --
now, let's keep in mind what case we're 
trying today -- or will be trying -- which 
is whether there was probable cause to go 
forward. 
THE COURT: Against Mr. Edwards? 
MR. LINK: Against Mr. Edwards. We are 
not trying the case against Mr. Edwards. We 
don't have to prove who would have won that 
case. So I'm going to get back to that in a 
sec. 
What he thought his damages were at the 
time, his real dollar damages is that he was 
spending money paying lawyers to defend what 
was happening during this Rothstein period. 
And so if you connect the dots and say, 
okay -- you said it better than I did, 
Judge. Rothstein is doing these criminal 
activities, which included using my name, 
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three legitimate lawsuits --
THE COURT: Who is my? 
MR. LINK: Mr. Epstein. 
THE COURT: Okay. 
MR. LINK: I keep trying to make you 
Mr. Epstein for my example. It's the only 
way it works for me. 
If you're Mr. Epstein and you see --
Judge, you see what's in the press and how 
your -- I want to make this clear. We have 
never challenged when Mr. Edwards filed them 
that he didn't have a good faith, legitimate 
basis to do so back in 2008. That's not 
what this case is about. 
But in 2009, if you're Mr. Epstein and 
you see all of this information and you look 
at what's happening here and you say, Have I 
spent legal fees, paid my lawyers in order 
to have to defend activity that was really 
designed not to benefit the three 
plaintiffs, but to let Rothstein take it and 
show investors? 
And we know, as a matter of fact, 
Judge, that Rothstein did it. He used 
bankers boxes from the Epstein cases. He 
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used flight manifests from the Epstein 
cases. So he actually used the information 
that was provided to him by Mr. Edwards to 
show investors. 
This is going to answer your question. 
This is key. I think I remember your 
question. This is key, if I remember your 
question. You said what if Mr. Edwards had 
a legitimate purpose? I believe Mr. Edwards 
can get on the stand and persuade you, 
Judge, he had a reasonable basis for doing 
everything he did. 
THE COURT: I didn't ask that question. 
MR. LINK: Well, you said what if he 
had a legitimate basis? What he was doing 
was trying to benefit the three folks. 
THE COURT: No. What I said was, 
couldn't that information that you just 
indicated to me that forms the basis for 
Mr. Epstein allegedly bringing this suit, 
could that not be -- could that not be 
utilized by Mr. Edwards to submit to the 
fact that -- submit the fact that the reason 
why Epstein brought this suit in the first 
place was one of trying to get back at 
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Edwards for inconveniencing his friends, for 
dragging those friends -- high-level friends 
into the process, for inconveniencing his 
pilots? All of these things that I brought 
out. That was the point that I made. 
MR. LINK: What element of the claim is 
that for? What element? That's malice. 
It's not probable cause. What Mr. Edwards 
thought, what he did, why he did it, has 
nothing to do with probable cause. It may 
have, Your Honor, a lot to do with malice. 
THE COURT: I think it has a great deal 
to do with probable cause, quite frankly. I 
think it's a mixed bag, so to speak, when 
you get to probable cause and malice. 
I agree with you that probable cause 
has to be proven before malice. But I think 
that there are -- certainly, in a case like 
this, which is an extremely unusual and 
complex matter that there are lead-overs, if 
you will, as it relates to probable cause 
and the malice elements. And I don't think 
it can be disputed here. This is not like 
the simple cases that we read in Florida 
Jurisprudence that deal with malicious 
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prosecution the more simple concrete-type of 
cases that sets one plaintiff against one 
defendant. This is different. 
And I think that the issue of malice 
and probable cause are going to be somewhat 
congealed and somewhat of a lead-over from 
probable cause to malice. Not vice versa. 
I understand the parameters legally in that 
regard. 
MR. LINK: I agree with everything you 
just said except -- without incurring the 
wrath of the Court -- I have to dispute the 
first part you said because I don't believe, 
Your Honor, that the law is, what's in 
Mr. Edwards' mind -- what's in Mr. Epstein's 
mind about his reasons for bringing the 
case, have anything to do with probable 
cause. I think they have everything to do 
with a malice. 
And the law is very clear. You can't 
use malice to demonstrate probable cause. 
So if you can't use malice, what difference 
does it make how much Mr. Epstein may have 
hated Mr. Edwards and wanted to do him harm? 
MR. SCAROLA: I thought that you were 
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pausing, and I wanted to raise a procedural 
question. If you are pausing --
MR. LINK: No problem. I never know 
when I'm pausing either. 
MR. SCAROLA: I have the same problem. 
Your Honor, I'm a little bit confused 
about the direction that that argument is 
taking, because I thought we were arguing a 
motion in limine to exclude evidence. And 
once there's a concession that the evidence 
is relevant to malice, even if we accept --
and I don't -- that it's not relevant to 
probable cause, it's relevant and it comes 
in. 
So I suggest that, since we have had an 
on-the-record concession of the relevance of 
the evidence, that part of the argument is 
over. 
THE COURT: Well I think Mr. Link -- I 
am giving him latitude, because I 
interrupted him to ask these questions that 
really needed to be answered from my 
standpoint. And as I look at these cases 
that are going to trial, I also try to put 
myself, not in either parties' shoes, but 
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certainly in juries' shoes when it comes to 
questions that they're going to have, and 
that really needs to be answered, because it 
helps me to narrow the issues as well. So I 
appreciate your courtesies in that respect. 
MR. LINK: My pleasure, Your Honor. 
THE COURT: Let's go ahead -- and if we 
could, let's get to the core issues that 
we're dealing with today and see where we 
are, because Mr. Scarola also makes a good 
point. I mean, a lot of this material that 
seems to be a matter of your motion when it 
comes to excluding this testimony or this 
evidence, it's essentially been conceded 
that most of this evidence is going to be 
relevant. 
MR. LINK: I didn't say that. I want 
to be very clear. I did not say that the 
evidence that he wants to submit or the 
questions he asked or the exhibits that he 
listed should come in on malice. What I 
said to the court is that Mr. Epstein's 
state of mind and how much he would have 
disliked Mr. Edwards or wanted to hurt him 
would be relevant to malice. That's very 
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different than asking the question about do 
you have a preference for minor children. 
THE COURT: So if we can, move now to 
issues of evidence that is being sought to 
be limited in terms of its introduction to 
the jury. 
MR. LINK: Yes, Your Honor. My partner 
Ms. Rockenbach will handle that. 
And, Your Honor, just so the Court's 
aware, Ms. Rockenbach has a professionalism 
meeting at Mr. Scarola's office that starts 
at noon. Do you mind breaking at 11:45? 
THE COURT: That's fine. I have a 
court luncheon, as well, with my colleagues 
down in the judicial dining room at noon, so 
that's not a problem. 
MS. ROCKENBACH: Your Honor, I would 
like to take the first issue in the 
omnibus -- revised omnibus motion in limine. 
But before we talk about Fifth 
Amendment, I just want cite one case to Your 
Honor before we leave this arena of probable 
cause. 
When I was reviewing the case law in 
preparation for this hearing, I chuckled to 
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think that the Florida Supreme Court in 1926 
called this an ancient action, malicious 
prosecution. But it is that very case that 
answers a point that Your Honor was just 
discussing. I'm talking about the Tatum 
Brothers case. And it says in Tatum 
Brothers --
THE COURT: Do you have a tab number 
for me? 
MS. ROCKENBACH: The tab number is -- I 
don't know that actually. I might be able 
to get that. 
THE COURT: If it's in your binder, I 
can probably find it. You did a good job 
with your --
MS. ROCKENBACH: The index. 
THE COURT: -- index. Yeah. I don't 
have a Tatum Brothers by that first name. 
MS. ROCKENBACH: I apologize, Your 
Honor. It's at 92 Florida 278, and it's 
published in 1926. The court said it is 
well established that want of probable cause 
cannot be inferred from malice, however 
great such malice may be, even the most 
express malice. 
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So before we leave that arena, that 
case back in 1926 said that you can't go 
backwards. You can't find malice then infer 
probable cause. 
THE COURT: I understand. I am just 
making a point that, in this set of unusual 
facts, it's not necessarily a clear-cut 
distinction that can be drawn. 
But again, sometimes facts will create 
these types of issues and they will be 
different than the 1926 set of facts. 
But go ahead. 
MS. ROCRENBACH: This is true. 
So, Your Honor, the first issue about 
the Fifth Amendment, I want to be clear that 
with regard to probable cause, my client has 
an original complaint that was filed against 
Mr. Edwards in December of 2009. 
He obviously didn't raise any Fifth 
Amendment with regard to any allegations 
that he filed in public court. 
He also filed two affidavits. Did not 
raise any Fifth Amendments with regard to 
the statements and facts that he alleged in 
those affidavits, one in 2013; and then the 
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most recent, 2013. 
There's a pending motion to strike the 
2017 set for these pending motion hearings. 
There was never any type of attack on 
the 2013 affidavit and they are 
substantially the same. 
The third issue about substantive 
testimony that my client gave that goes to 
the probable cause issue were the two 
depositions in which Mr. Scarola deposed 
Mr. Epstein. And that first one was 
March 17, 2010 -- and it's in the court 
file -- it was approximately three hours. 
And it's important, Your Honor, just if the 
Court would indulge me to read a few 
answers, because the point here is -- I 
should have started with this. If I may use 
the easel. 
So really there were two categories of 
questions that were asked of my client by 
Mr. Scarola. Some pertain to Fifth 
Amendment, which he raised, and some pertain 
to the malicious prosecution action. 
My client substantively answered in 
that March 17, 2010 deposition -- under the 
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