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MR. SCAROLA: I will make a commitment 
to the Court that we will proffer in advance 
any question that we reasonably anticipate 
will invoke a Fifth Amendment privilege. 
THE COURT: All right. Let's move on 
then. Again, let's refocus back to some of 
these issues that are directly before the 
Court. 
MR. LINK: Your Honor, can I just 
clarify, because I don't want that to leave 
untouched and it's this. May I, Your Honor? 
THE COURT: Briefly. 
MR. LINK: Thank you. Very briefly. 
I want to be clear that we have not 
heard the questions, so I can tell you, 
without knowing what the question is, 
whether we will raise the Fifth Amendment or 
not. My commitment to the Court was the 
questions that were asked already were not 
going to change the assertion of the Fifth. 
THE COURT: I think that was a caveat 
to Mr. Scarola's recitation. 
MR. LINK: Thank you, Your Honor. 
THE COURT: Again, it is with the same 
caveat that I explained earlier, and that 
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is, I am going to have both sides provide me 
with questions that -- well, really it would 
start with Mr. Edwards and Mr. Scarola 
providing your side with questions -- the 
specific questions that were asked that 
Mr. Scarola in good faith believes he will 
be asking at trial that have already been 
subject to invocation of the Fifth Amendment 
and/or attorney-client privilege or any 
other privilege, for that matter. 
All I've see are Fifth Amendment ad 
attorney-client privilege. There may have 
been a Fourteenth amendment or another 
amendment. 
MR. SCAROLA: Those questions will be 
elicited through Mr. Epstein's deposition, 
Your Honor. 
THE COURT: So what I'm trying to, 
again, give you global guidance as to how 
the Court intends to rule on some of these 
issues, but at the same time reserving the 
ability to be able to review the specific 
questions that with the Court's global 
guidance today are still subject to debate 
as to whether or not they are going to be 
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asked. 
For example, Mr. Scarola may have a 
list of 30 questions that after he has 
culled through the testimony he intends to 
ask -- strike that. He intends to publish 
before the jury by way of deposition 
utilization. 
If you find that any or all of those 
questions are outside the parameters the 
court has provided to you today, then it 
will be incumbent upon you to bring those 
before me and to --
MR. LINK: Judge, I understand. That's 
a fair procedure. 
THE COURT: -- and I will entertain 
further argument or I may not entertain 
further argument. I may just rule on it 
pursuant to the law that I have and what I 
perceive to be the appropriate rules of 
evidence. 
MR. LINK: Understood. That procedure 
is very clear to me. 
THE COURT: So let's go back now -- I 
want to give Mr. Scarola his opportunity --
is there anything else specifically that we 
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need to talk about now on Fifth Amendment 
issue? Because most of these other exhibit 
matters we can handle those -- we can handle 
them today, if you'd like to. But we don't 
need to handle them in conjunction with the 
Fifth Amendment issue. 
Things like massage tables and messages 
from notepads in Epstein's homes, flight 
logs, things of that nature, don't really 
get into necessarily Fifth Amendment issues. 
MR. LINK: We agree. 
THE COURT: So why don't you go ahead, 
Mr. Link. I want to give you an opportunity 
to rebut. 
MR. SCAROLA: Your Honor asked if there 
were other specific matters relating 
directly to Fifth Amendment. And the 
financial discovery raises Fifth Amendment 
issues that need to be discussed. 
THE COURT: Okay. We can do that after 
we get finish with Mr. Link's rebuttal on 
the global Fifth Amendment issues that we've 
dealt with thus far. Thank you. 
MR. LINK: Okay, I'm going to pick up a 
couple pieces of -- Your Honor, I just want 
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to touch on a couple pieces of the 
presentation, then I will go back to where I 
want to go. 
You asked about this timeline. And it 
doesn't say that it had anything to do with 
setting aside the NPA. This timeline says 
this. Jane Doe moved to unseal the NPA. 
And the reason that that caught 
Mr. Epstein's attention was because 
Mr. Edwards and Jane Doe already had it. 
They had a copy of the NPA, so why would 
they want it to be unsealed. 
THE COURT: For the same reasons that 
we discussed earlier -- Mr. Scarola was 
rather blunt about it -- and that is that 
doing that will enhance the value of the 
claims made by the three pseudonym 
plaintiffs. 
MR. LINK: Maybe. 
THE COURT: It may be. And I grant you 
that. But it also could inflame 
Mr. Epstein, potentially, as well. It also 
could provide Mr. Epstein with bona fide 
good faith motivation that he thought that 
this was resolved and now it's being opened 
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up again, so I can see both sides. 
MR. LINK: No question. That's what 
takes us to the Fifth Amendment and what 
we're talking about. And that that's this. 
Everything that was just discussed has to do 
with the truth -- with the truth of the 
allegations that are contained in Epstein's 
complaint against Mr. Edwards. 
What Mr. Scarola wants to do and what 
Mr. Edwards told us in his deposition, is 
they want to show the world that those 
allegations were untrue. 
THE COURT: Which allegations? 
MR. LINK: The allegations Mr. Epstein 
filed against Rothstein and Edwards. 
THE COURT: That the allegation as it 
relates to the claims by the three 
pseudonyms plaintiffs? 
MR. LINK: No, sir. 
THE COURT: Start again. I am not 
following you. 
MR. LINK: So there was a lawsuit filed 
by Mr. Epstein. He sued Rothstein and he 
sues Edwards. 
THE COURT: And L.M. 
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MR. LINK: And L.M. In that claim, if 
you read it fairly, you will not find an 
allegation that says that the three 
plaintiffs Mr. Edwards represented 
fabricated their claim. What you will find, 
Your Honor, when you read it, is that it 
says that those three cases were used to 
entice investors to invest in other cases. 
They also say in this complaint very 
clearly, that those three cases -- those 
three cases, the value of them -- the 
value -- not the legitimacy of filing 
them -- the value. 
THE COURT: That's not what it says. 
Paragraph H, which I will read for a third 
time says, quote, Rothstein and the 
litigation team -- which I'm assuming that 
included Mr. Edwards -- knew or should have 
known that their three filed cases were weak 
and had minimal value for the following 
reasons. 
MR. LINK: Yes. I agree with that. 
And I think any questions about that --
right -- any questions about that would go 
to whether that statement is true. But it 
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doesn't say -- it says they were weak. It 
doesn't say that they were ginned up. It 
doesn't say they were fabricated. It 
doesn't say any of the words that 
Mr. Scarola told you it said. It said that 
they should have known -- remember what I 
said, it follows the $500 million paragraph. 
If you relate it to the $500 million, they 
should have known that these cases weren't 
worth $500 million. 
But it doesn't not say anywhere in this 
complaint that Mr. Edwards fabricated those 
three cases in 2008. It doesn't say that 
anywhere. It doesn't say it anywhere. 
I absolutely agree -- I absolutely 
agree it says they were used by Rothstein to 
attract investors. Rothstein lied about 
those cases. 
Mr. Edwards candidly told us in his 
deposition that Rothstein used his cases --
Mr. Edwards' cases -- and fabricated claims 
about them in settlements. 
THE COURT: And the point is what? 
MR. LINK: The point is this. What 
Mr. Scarola wants to try to the jury is this 
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case right here. He wants the jury to hear 
the case that settled, these three folks to 
get on the stand and say that they were 
physically abused when they were minors. 
And if that is true -- that's what he tells 
us -- plaintiff Edwards starts -- my proving 
the truth of the claims he brought on behalf 
of them. 
If he does that, if he proves their 
underlying claim, he now has lack of 
probable cause. It's a disconnect. Because 
lack of probable cause has to do with 
Edwards' (sic) state of mind at the time. 
THE COURT: Edwards or Epstein? 
MR. LINK: Epstein. We have all done 
it four times. 
Epstein. Epstein's state of mind, and 
only his state of mind. I am competent if 
this case was tried -- this is the Epstein 
versus Rothstein and Edwards -- that 
Mr. Edwards will get on the stand, and he 
would tell the jury all the reasons why he 
did what he did. And they may believe him. 
But whether he had a legitimate reason or 
not, isn't relevant to whether Epstein had 
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probable cause. 
THE COURT: Let's focus on the Fifth 
Amendment issues. 
MR. LINK: Well, that's why it's 
important, because if you asked Mr. Epstein 
a question -- if you asked him a question 
that goes something like this, Did you touch 
E.W.? And sanitize it. Don't put anything 
graphic. Did you touch E.W.? what does that 
question -- it would be relevant here. He 
asserts the Fifth, relevant to this case 
(indicating), Judge. He asserts the Fifth, 
how is that relevant to the reasons in his 
head about why he decided to sue Rothstein 
and Edwards? How can it be relevant to 
that? 
THE COURT: If you asking me, as 
opposed to being rhetorical, I can answer it 
simply. 
MR. LINK: Both. 
THE COURT: This is pre-settlement, the 
filing of this lawsuit at bar, okay? 
MR. LINK: Yes. 
THE COURT: His strike, if you will, is 
a preemptive one on virtue filing of this 
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lawsuit. 
MR. LINK: That could be his motive. I 
agree. 
THE COURT: That's a simple answer. 
MR. LINK: Well, but that goes to 
motive not probable cause. Remember, the 
motive ties into the malice element. 
THE COURT: I understand. But the 
plaintiff in the malicious prosecution 
claim, Mr. Edwards, has the ability, through 
direct and circumstantial evidence, to be 
able to put on a case as to what was 
Mr. Epstein's reason. Why did he do it? To 
contradict Mr. Epstein's contentions. 
And, in my respectful view, one of 
those motives -- if you're asking me --
which you have -- and you suggested that you 
have --
MR. LINK: I have. Go ahead. I need 
teaching all the time. 
THE COURT: It's not teaching. It just 
a common sense logical thought that the 
reason why you bring a lawsuit like this 
that constitutes somewhere in the 
neighborhood of 35 pages where you are 
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claiming after this -- shortly after this 
law firm blew up --
MR. LINK: Correct. 
THE COURT: -- and everybody is 
scrambling. Nobody knows what's going on. 
Federal agents are raiding the offices, 
including, I presume, Mr. Edwards' office. 
MR. LINK: Yes. They took the Epstein 
case boxes. 
THE COURT: This is filed in 2009. The 
number 40,800 -- give you an idea of how 
many foreclosure cases we had back then. 
But the bottom line is it's -- I don't know 
if it's on this timeline -- the lawsuit is 
noted as to when it was filed. 
MR. LINK: 12/7/09. 
THE COURT: 12/7/09. Rothstein is 
arrested on 12/1/09. A week later (sic). 
MR. LINK: A week before. 
THE COURT: A week before. Exactly. 
Excuse me. A week before. Razorback 
complaint is filed 11/20/09. Things are, 
what I would, again, perceive, if you are 
asking me --
MR. LINK: I am. 
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THE COURT: -- to be at the zenith of 
stress and tension. 
MR. LINK: I agree. 
THE COURT: Here is something that is 
filed that, at least arguably could be 
suggested, was trying to get to Mr. Edwards 
at his weakest moment. 
MR. LINK: How about if for purposes of 
today I agree with you that was the motive. 
I am going to agree with you. Let's say, 
Your Honor, you are exactly right. For 
purposes of today that was the motive. What 
does that have to do -- this is the whole 
Fifth Amendment -- what does that have to do 
with this (indicating). 
THE COURT: With probable cause. 
MR. LINK: Probable cause. Because 
here is what probably cause --
THE COURT: Did he have probable cause 
to file this lawsuit when he did? 
MR. LINK: When he had the most evil of 
intent. 
THE COURT: You said it, not me. 
MR. LINK: Only for purposes of today. 
THE COURT: You asked me what my 
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perception could be --
MR. LINK: Yes, sir. 
THE COURT: -- and what this jury's 
perception, more importantly, could be. 
Because again, any answers that are given my 
this Court are what I perceive based upon 35 
years of doing this work, as a trial lawyer 
and a trial judge, and seeing hundreds of 
jurors and how they would go about their 
work. 
MR. LINK: You're older than I am. I 
didn't think that was possible. 
THE COURT: So that's where I think my 
frame of reference is. 
NR. LINK: And I appreciate it. And I 
appreciate it. And I'm agreeing with you, 
when you look at the element with what you 
just described could potentially be evidence 
of malice. According to the jury 
instruction and the case law is it cannot be 
evidence of probable cause. 
Here is one of the disconnect. I heard 
Mr. Scarola tell you the two statements he 
wants to focus on. What he is telling you 
in a subtle way is that he wants to have a 
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defamation case. Publication of two 
statements, falsity. And then he said to 
you, then the burden shifts, which it does 
in a defamation case. He used the 
defamation words: truth with good motive. 
This is not a defamation case. 
It doesn't matter. It doesn't matter 
if they have all the evidence in the world 
that they would have won, they would have 
had a land-slide victory, if the Epstein 
versus Rothstein and Edwards case was tried. 
It doesn't make any difference, because the 
focus has to be in December 2009 was there 
enough information. 
I'm not saying, Judge, if you were the 
lawyer if you would have brought it, or 
whether I would have brought it, but it was 
brought. And question is, was there enough 
information available that a reasonable 
person would -- could have reasonably 
brought this claim when they did. 
The timing can be suspect. The motive 
can be suspect. The malice can be suspect. 
But if there's enough information and 
logical inferences, then you don't have a 
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failure of probable cause. 
And the reason that's important under 
Fifth Amendment is if these three plaintiffs 
come in and testify, then essentially what 
we have -- we are trying the very original 
case that was filed in 2008, because I have 
to then cross-examine them on all of their 
claims and their damages and their health 
condition, and whether they had done 
prostitution before, and all of the other 
things that would have been tried in that 
case. 
So then if we open the door to 40 other 
people, we are going to have 43 sexual 
molestation cases. 
THE COURT: I'm not suggesting we are 
doing that. Again, this is not the work of 
Mr. Scarola. This is not the work of 
Mr. Edwards. This is not the work of you or 
Ms. Rockenbach. This is the work of 
Mr. Epstein --
MR. LINK: I agree it is. 
THE COURT: -- making these allegations 
in subparagraph H, 1 through 3 -- some weird 
tiny numbers. H, 1 through 3. He's, with 
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all due respect, stuck with these 
allegations. He's stuck with this lawsuit. 
He's stuck with the claims are contained 
therein and the allegations that are 
contained therein. 
MR. LINK: Absolutely. I agree 
100 percent. But what are we stuck with? 
That's the question. Are we stuck trying 
this case, Judge? Or are we stuck trying to 
prove to a jury that based on the 
information that existed, that we had 
reasonable basis to bring a civil 
proceeding? 
Because that's what it talks about. It 
doesn't say what claim did you bring? What 
count did you bring? What statements did 
you bring? It is a civil proceeding. 
THE COURT: Right now, though, Mr. 
Link, we're concentrating on the Fifth 
Amendment issues. There is not a motion in 
limine in front of me at this juncture as to 
the 40 other -- or the 40 in total alleged 
victims. There is not a motion in front of 
me regarding how far we are going to go with 
regard to the trial --
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MR. LINK: Fair enough Judge. 
THE COURT: In regard to the claims of 
the three litigants represented by 
Mr. Edwards. 
MR. LINK: Your Honor is 100 percent 
right. I appreciate you indulging me to 
answer some of the questions that's were on 
my mind. And I am appreciate that. 
Where we would like to go next, Your 
Honor, if the Court has time -- or we can 
take it up next time -- are those things 
that were on the exhibit list and witness 
list. 
One of the things we don't know, based 
on the rulings so far, is will E.W., L.M. 
and Jane Doe be taking the stand, because 
that's part of the motion in limine what we 
have been talking about. 
THE COURT: Are they listed as 
witnesses? 
MR. LINK: Pardon me? 
THE COURT: Have they been deposed? 
MR. LINK: They have not been deposed 
in this case. 
THE COURT: I presume they are listed 
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as witnesses. 
MR. LINK: They are listed as 
witnesses. 
MR. SCAROLA: Your Honor, I'm sorry --
MR. LINK: Were they deposed in this 
case? 
MR. SCAROLA: One of them was deposed. 
MR. LINK: I'm sorry. 
MR. SCAROLA: One of them was deposed 
in this case just recently. 
MR. LINK: I thought that was -- oh, 
yes. You're right. Sorry about that. One 
out of two. 
MR. SCAROLA: And the only one noticed 
to be deposed. 
MR. LINK: And that's an issue that you 
told us to come back to you on, Judge. 
Because if they are going to called -- I 
don't know if they are -- but if they are 
going to be called, then I would like the 
opportunity to depose those two. 
THE COURT: What I said somewhat off 
the cuff, but not as articulate as the 
Second District Court of Appeal in the case 
of Liabos versus Harman -- L-I-A-B-O-S. 
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Harman, H-A-R-M-A-N 
215 So.2d 487 was 
what I intended earlier, just so that we are 
all clear on the issue of probable cause, at 
least as it relates in this case in my 
relatively quick word search. 
It says, "It should be first noted that 
the lack of probable cause is a mix question 
of law and fact -- I will omit the 
citation -- that is to say when the facts 
relied on to proving lack of probable cause 
are in dispute, their existence is to 
determined by the jury as a question of 
fact. Their legal effect, on the other 
hand, is determined -- to be determined by 
the Court, but only after these facts are 
admitted to found -- are admitted or found 
to be true. 
MR. LINK: Yes. That's right. We are 
in complete agreement, which is, if the 
facts we say we relied on in bringing this 
claim -- if there's a dispute about one of 
those facts and whether we rely on it, then 
we would have a jury trial, and the jury 
would determine whether we relied or not. 
The Court would then take the 10 pieces of 
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