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column of malicious prosecution -- page 19, 
Mr. Scarola asked, "Your complaint in this 
action" -- he's referring to the malicious 
prosecution action -- "alleges that L.M. 
made claims for damages out of proportion to 
alleged damages. What does that mean?" 
"It means what it says." 
Mr. Scarola: "I don't understand it. 
Explain it to me." 
Mr. Epstein substantively answered 
questions related to his probable cause for 
instituting the civil proceeding of 
malicious prosecution when -- "I believe 
that as part of the scheme to defraud 
investors in South Florida out of millions 
of dollars, claims of outrageous sums of 
money were made on behalf of alleged victims 
across the board, and the only way, in fact, 
Scott Rothstein sits in jail. And what I 
have read in the paper, claims that I 
settled cases for $200 million, which is 
totally not true. She has made claims of 
serious sums of money, which is outrageous." 
He answers the questions, "Have you 
settled claims?" "Yes, I have." 
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Page 23 of the same deposition. My 
client substantively answers the probable 
cause question for why he brought -- and 
Your Honor asked the question -- why did 
Mr. Epstein file this malicious prosecution 
action? He told Mr. Scarola back in 2010 --
on page 23, Mr. Scarola said, "Did Brad 
Edwards do anything that he shouldn't have 
done that forms the basis of your lawsuit 
against him?" 
"Yes, many things." 
"List them for me, please." 
"He has gone to the media out of, I 
believe, an attempt to gin up these 
allegations. He has contacted the media. 
He has used the media for his own purposes. 
He has brought discovery. He has engaged in 
discovery proceedings that bear no 
relationship to any case filed against me by 
any of his clients. 
"His firm, which he is the partner of, 
has been accused of forging a federal 
judge's signature." 
Those are but two -- just two that I 
have taken and the Court has indulged me in 
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reading substantive answers. 
THE COURT: Believe me, I have read 
these over and over again. They're 
segregated in various motions that I have 
been privy to, and I also have read the 
transcript in full relative to Mr. Epstein's 
questions. 
The point that I tried to make with 
Mr. Link was that, number one, if as a court 
as a system of jurisprudence, we simply rely 
upon the contentions of the now defendant in 
a malicious prosecution claim as to probable 
cause, then there would really be, 
essentially -- there would be no malicious 
prosecution claim that would be brought. 
Secondly, I understand that it is the 
plaintiff's burden of proof. Now, if it's a 
pure legal question, the Court will deal 
with that accordingly. But at least for now 
we understand that it's the plaintiff's 
burden to prove as to probable cause. 
The point that I made and tried to make 
with Mr. Link was if a defendant in a 
malicious prosecution claim -- and I think 
some of these cases speak essentially to 
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that issue -- takes the Fifth Amendment in 
similar types of cases, then the plaintiff's 
position will never really be made known, 
unless there's an introduction to some 
degree of the fact that to certain 
questions -- now graphic sexual questions, 
the likelihood is I am not going to allow 
those into evidence. 
MS. ROCKENBACH: Understood. 
THE COURT: I haven't heard from 
Mr. Scarola, so I don't want to suggest that 
I am prejudging anything. But there is a 
bar that we need to respect as it relates to 
the difference between relevant evidence and 
a 403. I get it. 
But at the same time, I think as the 
judge, as opposed to an advocate, and taking 
into consideration both sides' positions, I 
have to recognize that there is a definitive 
and direct correlation between the 
invocation of Fifth Amendment rights as to 
issues that would go to proof of probable 
cause relating to the plaintiff's claim, and 
not simply take Mr. Edwards' (sic) 
contentions at face value. Because in 
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circumstances, such as this one where the 
Fifth Amendment has been discussed -- and in 
the vast majority of cases has --
Did I misstate something? 
MR. SCAROLA: Yes, sir. You said 
Mr. Edwards. You meant Epstein, I'm sure. 
So the record is clear, I thought it 
appropriate to correct that. 
THE COURT: We have all made those 
mistakes. I knew it was going to happen. I 
apologize for it. I caught myself once 
before. I apologize. 
Madam Court Reporter, could you just 
read back where I started with questioning 
Mr. Rockenbach, please? 
(Thereupon, the requested portion of the 
record was read back by the reporter as 
above duly recorded.) 
THE COURT: With the vast majority of 
cases that have dealt with this tension, the 
allowance on a limited basis of the 
invocation of the Fifth Amendment makes 
perfect sense, because logically it is a way 
for the plaintiff in the malicious 
prosecution claim -- Edwards -- to be able 
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to prove the case -- at least prove probable 
cause. It makes sense. 
And if I can divine common sense from 
these cases, then I feel I have made some 
reasonably decent strides. But it makes 
sense. I don't know if you can really argue 
with that logic. 
MS. ROCKENBACH: I don't, Your Honor. 
There's a caveat. We agree with the Court, 
and we would rely on two cases for this 
point, because we are talking about -- the 
reason I drew that line for Fifth Amendment 
and malicious prosecution is we're talking 
about whether Mr. Edwards can, in this 
malicious prosecution case, read questions 
to the jury that my client took the Fifth 
Amendment to and draw a negative inference 
therefrom. 
The US Supreme Court in Baxter --
that's the case -- that's the Fifth 
Amendment case -- it says, "It's key that 
there's independent evidence existing of the 
fact to which the parties refuse to answer." 
That's one building block for this 
issue. The second building block is a 
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Fourth DCA decision called Frazier versus 
Security and Investments, 1993. What does 
Frazier tell us? Not only do we build off 
the US Supreme Court and say you have to 
have independent evidence in order to use 
this Fifth Amendment adverse inference, but 
Frazier says that this adverse inference is 
limited against parties when they refuse to 
testify in response to probative evidence 
offered against them. Probative evidence 
offered against them. 
We looked at those three rings earlier. 
This lawsuit here is not the ring 
involving -- I am going to say them all 
wrong -- E.W., L.M. and Jane Doe. It's not. 
This is the malicious prosecution ring and 
suit. 
So the reason I read some excerpts from 
Mr. Epstein's deposition to Your Honor is to 
show that he didn't take the Fifth Amendment 
on issues relevant to why he filed the 
malicious -- why he filed his civil 
proceeding, the underlying suit for this 
malicious prosecution case against 
Mr. Edwards. He substantively answer those 
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questions. 
What he didn't answer were questions 
that would fall in the Fifth Amendment 
column that would be relevant in those three 
claimants' lawsuits or claims or criminal 
action. 
In that substantive three-hour 
deposition taken of my client, he was asked, 
"How many children have you sexually 
abused?" Have you ever sexually abused 
children? Have you ever socialized with --
and then he was asked about public 
figures -- the governor of New Mexico? 
"On how many occasions did you solicit 
prostitution? How many prostitutes do you 
contend you solicited? How many minors have 
you procured for prostitution. These are 
questions -- How many times did you engage 
in oral sex with females under age 18?" 
These have no relevance to the 
malicious action. And those are the very 
questions that we are asking Your Honor to 
not only preclude from being admitted to --
into evidence or any reference in the 
malicious prosecution, but also to preclude 
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Mr. Edwards from using the Fifth Amendment 
right against self-incrimination when those 
very questions have, A, no probative value 
in this lawsuit, no probative evidence, 
whatsoever; and B, there is no independent 
evidence --
THE COURT: I knew you all worked very 
hard in having produced these materials, and 
you all got involved somewhat late in the 
game, but what I didn't get is a definitive 
list of questions and answers that are 
sought to be excluded. 
Globally, as I indicated, and thus far, 
my inclination is not to allow those types 
of questions to be asked of Mr. Epstein or 
to be utilized as -- to be published to the 
jury. 
However, questions that deal with the 
fact that suits were brought against 
Mr. Epstein by at least the three people 
that were brought -- other suits that were 
brought against Mr. Epstein either by minors 
or by women of age that were actually filed 
or claims that were made and were paid by 
Mr. Epstein, those types of questions, I 
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believe, are going to be of probative value, 
which is essentially relevance, defined as 
tending to prove or disprove a material 
fact. 
What's the material fact? You can 
answer it or I will answer it. 
MS. ROCKENBACH: I have a question for 
Your Honor. But go ahead. 
THE COURT: What I would perceive to 
being the probative issue or the relevance 
gets to why Mr. Epstein brought this claim 
in the first place. A basic question, as I 
mentioned before, that the jury is going to 
have and the Court has, and for them to be 
hamstrung from asking those questions, flies 
in the face, as far as I'm concerned, of the 
majority of the cases that I have read that 
touch on these types of cases. They may not 
be a specific malicious prosecution case, 
but the logic still is maintained. You see? 
It can be differentiated -- some of 
these graphic questions that I'm not going 
to repeat here, but are a matter of public 
record and are in the materials far more 
graphic than what you have given us as 
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exemplars -- and I respect the fact that you 
didn't need to bring those into the record 
today. 
But what I am saying is that it goes 
back into the logic that I described 
earlier. 
MS. ROCRENBACH: Your Honor mentioned 
two categories --
THE COURT: And I'm not -- excuse me 
for a moment. I apologize for that. But 
I'm not trying to be definitive as far as 
the categories that are going to be or not 
be allowed. What I'm trying to give you is 
some type of global perspective, because, as 
I said before, unfortunately, whether it's 
time or whatever it may have been, the 
questions, to my knowledge, have not been 
segregated out. So as to go through on a 
question-by-question basis, yes or no. That 
may have to be done at a later time. 
But what I'm trying to do is indicate 
to you that from a jury perspective, they 
are going to need to know what fueled 
potentially, Mr. Epstein. Was it what he 
says, or at least from a circumstantial 
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standpoint, and based upon his refusal to 
answer questions germane to those three 
pseudonym -- the pseudonyms used by those 
plaintiffs and others who have brought 
claims -- I don't think those three cases, 
to my recollection, were the only three 
cases that were brought -- maybe by 
Mr. Edwards. 
MS. ROCKENBACH: They were the only 
ones brought by Mr. Edwards. And that leads 
me to the point -- I was going to jump back 
with Your Honor and say, you identified two 
categories and you said it's potentially 
relevant and probative to discuss those 
three that were the three lawsuits and 
others. 
THE COURT: Are you going to tell me 
that he -- part of -- Mr. Epstein did not 
bring any cases against any of the other 
lawyers? Is that what you're going to 
suggest? 
MS. ROCKENBACH: Number one, that is 
true and correct and accurate. He did not. 
And those other cases -- any other claims 
that were not being represented by 
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Mr. Edwards, they have no relevance to 
Mr. Epstein's lawsuit that he brought in 
December of 2009. 
THE COURT: You can argue that. I have 
no problem with that argument. 
MS. ROCKENBACH: But, Your Honor, as 
you've recognized, Your Honor is the 
gatekeeper. And introducing evidence that 
has absolutely no probative value and no 
relevance would be very harmful, 
inflammatory and clearly prejudice my client 
from --
THE COURT: I understand the point. 
You can proceed. 
MS. ROCKENBACH: Thank you, Your Honor. 
MR. LINK: Your Honor, can I offer a 
suggestion based on what I have heard? 
THE COURT: Any objection, Mr. Scarola? 
MR. SCAROLA: No, sir. 
THE COURT: Yes, sir. 
MR. LINK: Your Honor raises a good 
point, which is, without the specific 
questions in front of you, it makes it more 
difficult. 
And I do apologize. You're right. We 
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scrambled up until 10 o'clock the night 
before Thanksgiving. 
THE COURT: That's why I wasn't 
criticizing anybody for not having --
MR. LINK: And we didn't take it that 
way, Judge. 
But I do think it would be helpful for 
the Court and for the parties if we go 
through the questions and the answers --
there's not that many of them, frankly --
and have the Court make a ruling, because 
without doing it question by question from 
the depositions, you are giving this general 
guidance, but it doesn't help us get ready 
for the jury trial, Your Honor. 
THE COURT: I agree. I agree. And I 
have no problem with that. We have set 
aside several days in order to deal with 
that. 
But we can talk about the general 
theory of the utilization of the Fifth 
Amendment and how that is going to be 
presented to the jury. So let's go on and 
proceed further, please. 
Thank you, Mr. Link. 
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MR. LINK: Thank you, Judge. 
MS. ROCKENBACH: Thank you, Your Honor. 
I have provided Your Honor with the law 
that really is central and core to your 
gatekeeping function under 90.401 and 403. 
And the point is that there's no probative 
evidence. These Fifth Amendment questions 
that were asked of my client --
THE COURT: No probative value. 
MS. ROCKENBACH: No probative value. 
And the Frazier -- the Fourth DCA says that 
even that adverse inference against parties 
when they refuse to testify in response to 
probative evidence offered against them. 
If my client had taken the Fifth 
Amendment when Mr. Scarola asked a question 
about what did Mr. Edwards do to wrong you? 
How did he abuse his license to practice 
law, and my client said Fifth Amendment, 
absolutely, that is a question that would 
not only get read, it would get the adverse 
inference. 
But the questions that were asked of my 
client have zero probative value and are not 
anything related to the issues of probable 
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cause in this action. 
So I might suggest that since 
Mr. Scarola is the proponent of those 
questions and that evidence, that he would 
identify questions that he wants to present 
to which my client pled the Fifth. 
Before I stop speaking, though, just 
one other point. Mr. Edwards wants to use 
my client's invocation of the Fifth 
Amendment as a gag order on the column of 
malicious prosecution answers, meaning, in 
one of his motions it's to strike the 
affidavit. 
And to be clear to the court, we are 
not submitting an affidavit as testimony at 
trial. We wouldn't do that. But it is a 
blueprint for what my client would testify 
to, as is the complaint that my client filed 
against Mr. Edwards. 
Those were the allegations and the 
facts and circumstances, which goes to 
probable cause that Mr. Epstein relied on in 
December of 2009. So Mr. Edwards is moving 
to strike the affidavit, and based on the 
Fifth Amendment, says that my client can't 
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use it sword and shield. My client is not 
using Fifth Amendment as sword and shield 
whatsoever. 
In the example I gave Your Honor, that 
would be a sword and shield if my client 
refused to answer the question of why he 
filed the original proceeding against 
Mr. Edwards in December of 2009, why he 
instituted that action, Fifth Amendment, 
that would be a sword and shield, and they 
could get an adverse inference. 
So part of my omnibus -- revised 
omnibus motion in limine and the response 
to, I think, Mr. Edward's motion to strike 
my client's affidavit, implicates the Fifth 
Amendment. 
THE COURT: We will take up with the 
striking of the affidavit separately. 
MS. ROCKENBACH: Okay. 
THE COURT: I don't think --
MR. SCAROLA: That issue is moot. The 
affidavit is not going to come into 
evidence, obviously. It was moved to be 
stricken as support for a motion that has 
already been denied. So I don't know why 
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we're talking about striking the affidavit. 
MS. ROCKENBACH: Good. Then it seems 
that it's moot by Mr. Edwards and we will 
move on. But we wanted to make sure that 
that testimony that's provided in the 
affidavit should not be under some type of 
gag order. My client should be able to 
testify as to what -- why he had probable 
cause. 
THE COURT: My position, before 
Mr. Scarola mentioned its mootness, was that 
as long as the information that's set forth 
in the affidavit, which by the way -- and 
it's not uncommon -- as brilliant as both 
sides are, I didn't have a copy of the 
affidavit. 
MS. ROCKENBACH: I apologize to the 
Court for that. 
THE COURT: It's okay. While it may 
have been attached somewhere -- one other 
thing. I don't know why Mr. Scarola, from 
your office, I didn't receive any binder or 
anything else. I had to, last night, copy 
the replies and the responses to take home 
with me. 
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MR. SCAROLA: We work in a binder-free 
zone, Your Honor. 
THE COURT: That's fine. But I do 
require -- because most -- as last night --
most of my preparation is done at home. And 
I'm so tired of looking at computers that 
it's much easier for me to have the hard 
copies. 
I know others are much more computer 
savvy when it comes to those kinds of 
things. But I just find it more comfortable 
to be able to have something in my hand and 
read it. If you can kindly go ahead and 
forward them to me so -- last night getting 
the responses and having my JA 
I commend 
her for staying as late as she did last 
night and getting all of that material and 
helping getting it all marshaled --
Again, I just wanted to gently remind 
you folks that I may do things differently 
than others in the sense that I still like 
to have hard copies and not to sit there in 
front of a computer later in the evening. 
Anyway. Sorry I got off on that 
tangent. 
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Did you want to add anything else? 
MS. ROCKENBACH: Yes, Your Honor. As 
part of that omnibus motion in limine, we 
somewhat moved on from the Fifth Amendment 
questions and answers, because I think 
Mr. Scarola may want to tee up for the Court 
what precise questions that he is seeking to 
admit and introduce into evidence, so that 
Your Honor can rule on each one. Perhaps we 
can take that up after lunch. I'm not sure 
if that works. 
THE COURT: I would like to hear some 
of Mr. Scarola's arguments now. I would 
like to get into the global issue of the 
Fifth Amendment, as well as parameters that 
he believes are appropriate as it concerns 
the nature of the questions that are going 
to be sought to be introduced and the 
invocation of the Fifth Amendment and where 
we stand currently. 
Because if I'm understanding correctly, 
because of the pendency of that federal 
lawsuit, essentially Mr. Epstein is going to 
be taking the same position now as he has in 
the past? 
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