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Mr. Edwards to Epstein may have come from the 
disk, if you will? 
MR. SCAROLA: Yes. 
THE COURT: But were not produced by way 
of a disk. That disk --
MR. SCAROLA: They were produced in hard 
copy. 
THE COURT: Right. That disk was 
retrieved in some other fashion that we've 
talked about, and that was the choice that was 
made to have Fowler White do what they were --
MR. SCAROLA: Yes. And that choice is the 
subject of the 47 documents that we'll talk 
about later. 
THE COURT: Okay. 
MR. SCAROLA: My only point here is that 
these documents, the email that is being 
referenced, including, in particular, the one 
or the two that are a part of Exhibit 
Number 211, that email has been in Epstein's 
possession for seven years. 
He's had it for seven years. He could 
have listed it anytime that an exhibit list was 
required to be disclosed. This was not newly 
discovered by any means at all. 
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And there is no justification for not 
having included it on an exhibit list earlier, 
with one exception, and that is new counsel 
decided on a new strategy and decided that they 
wanted to try to use this email after all of 
the applicable deadlines were passed. 
Now, let's just take this one document as 
an example --
THE COURT: Before we do that, how do you 
interpret that paragraph D of the joint 
pretrial stipulation that was alluded to by the 
Court, and by Mr. Link, to some degree, and the 
language that says "The parties do not waive 
their right to amend their exhibit lists and to 
identify additional objections for those 
exhibits that have not yet been disclosed 
and/or provided to correspond with the parties' 
respective exhibit lists." 
MR. SCAROLA: That's where I tried to 
start with my comments to the Court, Your 
Honor. All that says is we are preserving the 
rights to amend that are defined in the Court's 
pretrial order. That's all that it says. 
THE COURT: All right. 
MR. SCAROLA: I can't imagine any 
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competent trial lawyer, and I like to think 
that I at least have a minimum level of 
competence, who is going to say, You can add 
anything you want to, anytime you want to, and 
I waive any right I have to object. 
THE COURT: Well, I would hope so. 
MR. SCAROLA: I would hope so, too. 
So it does make sense to say, the Court 
has defined the circumstances under which we 
have a right to amend, and we're not waiving 
the right to amend that's defined in the 
Court's pretrial order. That's all that that 
was intended to say. That's all it reasonably 
could say. 
So returning back to this exhibit, as an 
example, because it's the example that opposing 
counsel chose to focus on. 
THE COURT: Talking about Number --
MR. SCAROLA: This is 211. 
THE COURT: -- 211. Okay. 
MR. SCAROLA: Number 211. So I gather 
from the argument that's made is that they want 
to try to use this exhibit to --
THE COURT: Unfortunately -- is 211 one of 
the emails that were not included because of a 
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potential in camera inspection? 
MR. LINK: No, sir. 
MR. SCAROLA: No. None of these are. 
MR. LINK: None of these are part of the 
47. It's in the big book, Your Honor. 
THE COURT: Okay. I have it. 
MR. SCAROLA: Okay. 
THE COURT: That was the one with 
Mr. Rothstein, the eight kids? 
MR. LINK: That's the one, sir. 
MR. SCAROLA: Yes. This is Brad Edwards 
writing to Russ Adler --
THE COURT: I see, the first one is 
Mr. Edwards writing to Mr. Adler, correct? 
MR. SCAROLA: Right. 
THE COURT: "Well, do you want me to talk 
to him about our Epstein information today? Or 
do you want to also be involved and set it up 
some other time? Bradley Edwards." 
MR. SCAROLA: Right. And the suggestion 
is made that this impeaches Brad Edwards' 
testimony that he only met with Mr. Rothstein 
and spoke about the Epstein cases on two 
occasions. 
Well, first of all, it doesn't do that. 
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But, secondly, if this is going to be a piece 
of evidence, I want to talk to Russ Adler about 
it. I want to find out what happened after 
July 20, 2009, at 10:45 a.m. 
THE COURT: Is Mr. Adler listed as a 
witness? 
MR. SCAROLA: I don't even know at this 
point whether Mr. Adler's listed as a witness. 
I certainly don't intend to call him. I had no 
plans to call him. I haven't interviewed him. 
I haven't deposed him. I think -- isn't 
Mr. Adler one of those individuals who may be 
doing time? I think he may be. 
THE COURT: I think the time that he was 
sentenced to, if I recall correctly, was not a 
significant amount of time. 
MR. SCAROLA: I don't know, Your Honor, 
but I certainly haven't had any communications 
with --
THE COURT: Well, significant if I put it 
in the same context of Mr. Rothstein. 
MR. SCAROLA: Understood. 
THE COURT: Any time is significant. I 
don't want to suggest that I'm minimizing that 
at all. 
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MR. SCAROLA: Okay. Well, I do know that 
Mr. Rothstein was deposed. I do know that it 
took considerable effort to get to depose 
Mr. Rothstein. I do know that this was not a 
listed exhibit at the time that Mr. Rothstein's 
deposition was taken, so he couldn't have been 
questioned about it. 
Would I have questioned him about it if it 
was on the defense exhibit list? I certainly 
would have. Is it possible, conceivably, to be 
able to do that between now and December 4? 
The answer to that is absolutely not. And I 
think that the Court can recognize the fact 
that that can't occur. 
THE COURT: For ease of reference, like I 
like to do during all of these hearings when 
dates are brought into play, today is 
November 1, 2018, [sic] and the trial is 
scheduled for December the 4th of 2018. 
MR. SCAROLA: Yes, sir. 
MR. LINK: May I answer the Court's 
question about Mr. Adler you asked? 
MR. SCAROLA: Could I -- I'm sorry, go 
ahead. 
MR. LINK: I just wanted to answer the 
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Court's question. He was deposed in this case 
on April 20th, 2011, Your Honor. 
MR. SCAROLA: In which case, since this 
wasn't an exhibit, he certainly wasn't asked 
any questions about it. 
THE COURT: All right. 
MR. SCAROLA: So that, I -- I focus on 
this one example, because it's the one example 
that opposing counsel chose to call the Court's 
attention to. And it is illustrative of the 
problem that exists with regard to every one of 
these documents. 
Since they weren't listed as exhibits, 
they could not have been the focus of prior 
discovery, including depositions that were 
taken of people who either were direct parties 
to these communications or were in a position 
to have knowledge with respect to the subject 
matter of the communications. That wasn't 
done. And would obviously, in a case of this 
magnitude, have been included as part of the 
discovery had these exhibits been timely 
disclosed. 
Now, the other problem, as I began to 
address, was that these are the documents out 
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of the disclosed thousands of documents that 
the defense has chosen to list. There may be 
ten other emails that relate to this subject 
matter. 
Incidentally, there were 20 --
approximately 21,000 hard-copy documents that 
were delivered in discovery. We would need to 
review 21,000 documents in order to determine 
whether there's anything we want to include on 
our exhibit list in response to the 
cherry-picked documents that they have 
included. Beyond that, there very well may be 
privileged documents that we might want to 
attempt to use, and frequently that privilege 
is not an attorney's privilege to waive. 
It would require that we contact, one, a 
client, if it's an attorney-client privileged 
document, in order to secure permission from 
the client to waive the privilege in order to 
use it in rebuttal to the documents that they 
have chosen, cherry-picked to use, or two, 
there was, in place, a joint prosecution 
agreement for all communications that occurred 
among counsel who were prosecuting claims 
against Jeffrey Epstein simultaneously. 
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Under the terms of that joint prosecution 
agreement, that common interest privilege 
agreement, Bradley Edwards cannot unilaterally 
decide that he's going to use any of those 
documents. He is obliged to get the clearance 
of every other participant in that agreement in 
order to be able to use those documents. 
So there is a complicated multistep 
process involving, first, the review of 21,000 
documents, the selection of those that are 
relevant and material with regard to the 
subject matter that is raised in these 
documents --
THE COURT: But, excuse me, Mr. Scarola. 
I hate to interrupt you. 
MR. SCAROLA: No, no, that's quite all 
right. 
THE COURT: We're deviating, in my view, 
respectfully, from what these exhibits that are 
listed in the latest exhibit list filed by 
Epstein and these 47 proposed exhibits that 
have not yet been listed, at least for purposes 
of today's hearing. 
I'm really -- I really want to focus on 
those exhibits that were filed in the May 2 
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filing. 
MR. SCAROLA: Yes, sir. And I'm sorry if 
I didn't make myself clear, but that's what I 
was attempting to do. What I'm saying is 
THE COURT: Go ahead. 
MR. SCAROLA: -- that with regard to these 
exhibits, one of the issues in Binger, not the 
only issue, but one is: Is there prejudice? 
And my response is, yes, there is prejudice 
because if you allow this to come in, I've got 
to review 21,000 documents to see what else is 
relevant to this topic. If any of those 
relevant documents are privileged documents 
that I want to use, there's a multistep process 
that I must go through in order to be able to 
use those documents in response to this 
nonprivileged document. 
I hope that I've -- that I've explained 
that better. 
THE COURT: The only question that I would 
have, though, is that because there are 
numerous emails under the subheading 
communication, starting with Number 171 and 
going to -- in large part they're emails. 
There are a couple of circumstances in this 
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communication subheading, there are -- there's 
a, for example, Wackenhut incident report for 
number 2 -- 332 and 334, and then an affidavit 
of Ken Jenne, the former sheriff of Broward 
County also listed. 
But, the bulk, by far, and I believe 
it's -- other than those three instances, and 
there's a letter also in 2016, so other than 
those four instances, they're all emails. 
MR. SCAROLA: Yes, sir. 
THE COURT: And I presume that most of 
those emails are in or among those 27,542 pages 
of documents; fair? 
MR. SCAROLA: Yes, sir. I 
my belief is 
that they're all from that source. 
THE COURT: Thank you. 
So by and large, you're going to have to 
review these other 150 or so, and I'm just 
estimating, emails that have been listed here 
amongst those 27,542 pages to put those in 
context. 
MR. SCAROLA: Only -- only if they are 
going to be permitted to be used. 
THE COURT: Well, I don't know that yet, 
because I don't know what objections, if any, 
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have been made to these at this point in time. 
But I would suspect that there's a potential 
that some may be used. 
MR. LINK: Oh, I think, Your Honor, 
because --
THE COURT: Are you thinking in good faith 
that every one of these would be subject to 
disallowance? 
MR. SCAROLA: I believe that every one of 
them is subject to being disallowed. I think 
that the -- there are multiple reasons, they 
are in violation of this Court's order setting 
a time limit with regard to the disclosure of 
exhibits, and the use of any one of them would 
create substantial prejudice to the plaintiff 
for the reasons that I began to describe. 
We're going to lose our trial date. 
That's a really big prejudice in this case. 
THE COURT: I'm not even there yet. What 
I'm saying is only in relation to what you 
suggested today, that if any of these alleged 
late-listed emails, which number 
a relative 
few of the 150 or so that have been listed 
here, and even if we include the 47, the other 
140-some-odd that are late -- or that are 
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listed, but not allegedly late, would still, my 
point being, require this overarching analysis 
to put in context, whether it be for objection 
purposes, for admission purposes, for 
completion purposes, that being the rule of 
completeness, to put into context what some or 
all of these emails may have said, there may be 
emails that are helpful to your cause, so you 
may not object to them. That's the point I'm 
trying to make. 
MR. SCAROLA: And Your Honor's right 
THE COURT: If it requires this 
overarching analysis, no matter how onerous it 
is for you and your firm members to go through 
a significant number of those 27,000 
and-some-odd pages, if not all of them. 
MR. SCAROLA: We have, with respect to 
every properly listed exhibit, examined those 
documents, decided what we needed to do with 
respect to being prepared to address anything 
raised in those documents, we have considered 
whether there is other evidence originating 
from the disk or otherwise. We have examined 
witnesses with respect to those documents, 
including email, that were appropriately and 
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timely listed. That's all been done with 
regard to what was properly listed. 
It has not even been begun with regard to 
everything that has been improperly listed. 
The 140 or whatever the number it is, of new 
email have not --
THE COURT: Those are not new emails. 
Those are the ones that have been listed, my 
presumption being for the time period as 
required by court order. It is only 
MR. SCAROLA: The yellow ones. 
THE COURT: -- the yellow ones, which are, 
again, a relative few. 
MR. VITALE: Approximately 19, Your Honor. 
MR. LINK: I counted 13, Your Honor. 
THE COURT: Whatever it might be, not 
counting 332 through 337 so, you know, we're 
talking about a number in the teens as 
juxtaposed to the 150 or some-odd entries here 
from 171 to 337. So... 
MR. SCAROLA: Yes, sir. And every one of 
those 13, whatever the number is, are subjected 
to the same kind of analysis that we have dealt 
with with regard to Number 211, and that is we 
need to examine all of the other potentially 
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related emails with regard to this one, 
everything that occurred during that same time 
frame, we need to discuss it with Mr. Adler, we 
need to discuss it with Mr. Rothstein, and 
those are things that we have not done and 
cannot do in the available time. That's the 
only point I'm attempting to make. 
So whether it's one document or 13 
documents, the same arguments pertain and the 
same basis exists for excluding them. 
THE COURT: Was there any effort to 
contact any of the individuals mentioned for 
the 145, or whatever it may be, exhibits 
relating to emails here that were not 
late-listed? 
MR. SCAROLA: I will tell you that we 
conducted a thorough preparation with regard to 
every properly listed email. 
Beyond that, beyond that, I can't respond 
to the Court's question because of work product 
issues involved. 
THE COURT: I'm not asking you for that. 
I'm asking only for what has been a matter of 
record. And that is, have there been 
depositions taken relative to the emails that 
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were timely listed? 
MR. SCAROLA: There have been depositions 
taken of witnesses who were parties to the 
emails. There have -- and there have been 
discussions, both in deposition and outside 
deposition, with regard to what was going on in 
Rothstein, Rosenfeldt, Adler during the 
relevant period of time taking into 
consideration the subject matter that is 
disclosed in properly listed emails --
MR. LINK: Your Honor, I'm sorry to 
interrupt, but that's an inaccurate statement. 
I know it's not intentional, but I want the 
record to be clear. 
Discovery was closed and this Court 
entered an order when it granted the 
continuance that said no more discovery. If we 
wanted something specific, come back and see 
the Court. So at the time every one of these 
exhibits were listed, discovery was closed, 
there were no depositions taken by Mr. Scarola 
after that time. 
In addition, Your Honor said, if you need 
additional discovery, come and see me, and they 
did not come and see you once we properly 
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listed all but the 13 we're talking about 
today. 
Thank you, Your Honor. 
MR. SCAROLA: Your Honor, so that the 
record is clear, we know what the universe of 
emails was. And we had the opportunity and 
took that opportunity to discuss with those who 
were inside the firm at the time what was going 
on in light of what we knew could possibly be 
listed as proper exhibits. 
THE COURT: All right. Thank you. You've 
answered my question. 
MR. SCAROLA: Thank you, sir. 
The second category, the second broad 
category that Mr. Link refers to are documents 
that relate to, as Mr. Link expressed it, the 
Court's ruling that Edwards could talk about 
his clients. 
Now, the clients of Bradley Edwards are 
expressly identified in the complaint that 
Jeffrey Epstein filed against Bradley Edwards. 
They are specifically referenced in the 
malicious prosecution claim. The suggestion 
that the defense did not know that these were 
going to be issues until the Court ruled that 
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Bradley Edwards would be able to talk about 
these things, I don't know how that suggestion 
could be made in good faith. 
THE COURT: Well, I mean, that kind of 
goes to what I was talking about earlier. 
Isn't his complaint, that being Mr. Edwards' 
complaint, directing the Court to, and 
directing anyone who reads it, to these three 
individuals? 
MR. SCAROLA: Absolutely. No question 
about it. And, as I said, their credibility, 
the quality of their claims was thoroughly 
investigated by Mr. Epstein before Epstein sued 
Edwards or Edwards sued Epstein. He's known 
this all along. He made his allegations 
against Edwards knowing what their background 
was as of the time of his filing. 
And as Your Honor has observed, much of 
what they are seeking to add now could not 
possibly be relevant or material to either the 
issue of probable cause, or the issue of 
damages, unless there is a concession that the 
reason why these three young lives were ruined 
is because of what Jeffrey Epstein did to them. 
And there has already been testimony about that 
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occurring. 
How do you get in -- how do you possibly 
get in a police report about an arrest? How do 
you get that in? It can't come in. But, even 
assuming that these are things that were 
gathered by Epstein subsequent to the filing of 
Epstein's complaint against Bradley Edwards, 
they couldn't possibly contribute to the 
probable cause. They were unknown to him. 
They couldn't possibly contribute to anything 
he said in the complaint, they were unknown to 
him. And in many circumstances hadn't even 
occurred yet. 
THE COURT: Well, that's what I alluded to 
earlier. But, again, my focus was shifted, and 
I think properly so, to getting back to the 
late filing issue. 
MR. SCAROLA: Yes. And with regard --
THE COURT: And to return to what you 
suggested, I do, because I think it just makes 
sense, even though I have my concerns over its 
ultimate admissibility, but we're really not 
there yet. 
MR. SCAROLA: But the suggestion was made 
in argument that the reason why we were -- were 
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listing these late is because the Court had not 
yet ruled that this was going to be relevant 
and material information. That just isn't so. 
It was relevant and material, whether it's 
admissible or not, whether it's really relevant 
or not, based upon the allegations included 
within the original complaint against Brad 
Edwards and the malicious prosecution claim 
that is currently being prosecuted in front of 
this Court. 
There is no way to excuse this 
nondisclosure, either because these documents 
were recently discovered, because they have 
been known and knowable for many years, or on 
the basis that the issues have somehow changed 
as a result of some ruling that Your Honor 
made. That's just not the case. 
And we cannot lose sight of two important 
things with regard to probable cause. One, as 
opposing counsel has repeatedly acknowledged, 
probable cause is a legal issue for 
determination by the Court. It is not a jury 
issue. This Court decides on probable cause. 
And this Court decides on probable cause 
based upon what Jeffrey Epstein knew as of the 
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