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IN THE CIRCUIT COURT OF THE FIFTEENTH
JUDICIAL CIRCUIT, IN AND FOR PALM
BEACH COUNTY, FLORIDA
JEFFREY EPSTEIN,
CASE NO.: 502009CA040800XXXXMBAG
Plaintiff,
vs.
SCOTT ROTHSTEIN, individually, BRADLEY J.
EDWARDS, individually, and L.M., individually,
Defendant,
DEFENDANT/COUNTER-PLAINTIFF'S RESPONSE IN OPPOSITION TO
PLAINTIFF/COUNTER-DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON
DEFENDANT/COUNTER-PLAINTIFF'S FOURTH AMENDED COUNTERCLAIM
Defendant/Counter-Plaintiff Bradley J. Edwards, by and through his undersigned counsel, hereby
submits this Response in Opposition to Plaintiff/Counter-Defendant Jeffrey Epstein's Motion for
Summary Judgment. Epstein seeks Summary Judgment on the claims of abuse of process and malicious
prosecution set forth in Brad Edwards' Fourth Amended Counterclaim. Each of the grounds asserted in
support of Epstein's Motion for Summary Judgment are without merit and must be denied.
In Epstein's Amended Complaint he carries forth the essence of all claims asserted in his original
Complaint. In that pleading Epstein essentially alleges that Edwards joined Rothstein in the abusive
prosecution of sexual assault cases against Epstein to "pump" the cases to Ponzi scheme investors. The
purported "proof' of the allegations against Edwards, as referenced in the Second Amended Complaint
and in Epstein's Motion for Summary Judgment, includes Edwards' alleged contacts with the media, his
attempts to obtain discovery from high profile persons with whom Epstein socialized, press reports of
Rothstein's known illegal activities, the use of "ridiculously inflammatory' language and arguments in
court. But as the evidence submitted in opposition to Epstein's Motion for Summary Judgment reflects,
Epstein filed his claims and continued to pursue claims despite his knowledge that his claims could never
be successful because they were both false and unsupported by any reasonable belief of suspicion that
Case No.: 502009 CA040800XXXXIVIBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 2 of 15
they were true. Epstein knew that he had in fact molested each of the minors represented by Brad
Edwards. He also knew that each litigation decision by Brad Edwards was grounded in proper litigation
judgment about the need to pursue effective discovery against Epstein, particularly in the face of
Epstein's stonewalling tactics.
Epstein also knew that he suffered no legally cognizable injury
proximately caused by the falsely alleged wrongdoing on the part of Edwards. Moreover, Epstein had no
intention of waiving his Fifth Amendment privilege against self-incrimination in order to avoid providing
relevant and material discovery that Epstein would need in the course of prosecuting his claims and to
which Edwards was entitled in defending those claims. Epstein knew that his prosecution of his claims
would be barred by the sword-shield doctrine.
Most significantly, the evidence submitted in the
supporting papers would compel a fact finder to determine that Epstein had no basis in law or in fact to
pursue his claims against Edwards and that Epstein was motivated by a single ulterior motive to attempt
to intimidate Edwards and his clients and others into abandoning or settling their legitimate claims for
less than their just and reasonable value. The evidence demonstrates that Epstein did not file these claims
for the purpose of collecting money damages since he knew that he never suffered any damage as a
consequence of any alleged wrongdoing by Edwards but filed the claim to require Edwards to expend
time, energy and resources on his own defense, to embarrass Edwards and impugn his integrity and deter
others with legitimate claims against Epstein from pursuing those claims.
Indeed, the evidence
demonstrates that Epstein continued to pursue his claims by filing the Second Amended Complaint
alleging abuse of process against Edwards even after he had paid significant sums in settlement of the
claims instituted by Mr. Edwards' clients against Mr. Epstein!
The evidence marshalled in support of these assertions is set forth in the previously filed documents in this Court.
Those documents include Exhibit "A" — Edwards' Statement of Undisputed Facts; Exhibit "B" — Edwards' Renewed
Motion for Summary Judgment; Exhibit "C" — Edwards' October 19, 2012 Second Renewed Motion for Leave to
Assert Claim for Punitive Damages; Exhibit "D" — Edwards' Notice of Filing of Transcript of Telephone Interview
of Virginia Roberts in Support of Motion for Leave to Amended to Assert Punitive Damages; Exhibit "E" —
Transcript of Deposition of Jeffrey Epstein dated January 25, 2012; Exhibit "F' — Deposition of Bradley Edwards
dated March 23, 2010; Exhibit "G" - Deposition of Scott Rothstein dated June 14, 2012; Exhibit "H" — Order of
Case No.: 502009CA040800XXXXMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 3 of 15
The record reflects that on the eve of the hearing of Edwards' Motion for Summary Judgment
directed to the Second Amended Complaint and in light of the compelling evidence of the lack of any
wrongdoing on the part of Mr. Edwards, the sole remaining abuse of process claim was dismissed by
Epstein.
As discussed, infra each of the grounds asserted by Epstein in this Motion for Summary
Judgment must be rejected. The litigation privilege does not serve as a bar to the prosecution of Edwards'
claims against Epstein. Moreover, the evidence submitted by Edwards supports each of the elements of
the claims asserted by Edwards against Epstein which are identified in Epstein's Motion.
Response to Epstein's Statement of Undisputed Facts
The evidence marshalled by Edwards in support of his claims against Epstein which are
referenced in footnote 1 mandates the conclusion that, at a minimum, disputed facts exist with respect to
the elements of each claim addressed by Epstein in his Motion. The facts presented in the various papers
would allow the jury to make a determination that Epstein knew that Brad Edwards properly exercised his
legitimate judgment regarding the need to pursue proper and effective discovery against him to support
the claims which Epstein knew were legitimate. That evidence, referenced herein, further demonstrated
that Epstein filed his claims without probable cause and further that there was a bonafide termination in
favor of Edwards. That evidence further demonstrates that the elements of the claim of abusive process
have been established.
The following additional comments are directed at some of the key purported "undisputed"
material facts asserted by Epstein, especially those referenced in his Memorandum of Law. Also set forth
are key evidentiary matters which undermine Epstein's contentions and which support the proposition
that material issues of fact exist which compel the denial of the Motion for Summary Judgment.
Judge Crow dated March 29, 2012; Exhibit "I" — Deposition of Bradley Edwards dated October 10, 2013; Exhibit
"J" — Deposition of Bradley Edwards dated May 15, 2013.
Case No.: 502009CA040800XXXX.MBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 4 of 15
None of the public materials identified by Epstein in his Motion make reference to any
wrongdoing by Brad Edwards. Rather, Epstein seeks to pyramid one impermissible inference upon
another from his citation to these materials to support his otherwise unsubstantiated and non-verifiable
conclusion that he had sufficient evidence to proceed with claims of wrongdoing against Edwards. In
truth, as reflected in Edwards' deposition and his supplemental affidavit, he has no involvement in any
fraud perpetrated by Rothstein (Edwards' deposition of March 23, 2010 at 301-302; Edwards Affidavit
attached to Statement of Undisputed Facts as Exhibit "N" at paragraphs 8-10, paragraph 20, paragraphs
22-23; Exhibit "H" — Deposition of Scott Rothstein at pp. 62-63, 114, and 121-124). Therefore, any
allegations relating to Rothstein's activities simply have no bearing on the legitimacy of any of the claims
against Edwards.
Edwards could not have possibly "pumped" cases to investors when he never
participated in any communications with investors. Rather, Edwards had a duty to his clients to zealously
pursue discovery to achieve a maximum recovery against Epstein. Edwards cannot be liable for taking
appropriate action that his ethical duties as an attorney required. The evidence also reflects that Edwards
filed all three of his cases almost a year before he was hired by RRA or even knew Scott Rothstein
(Edwards' Affidavit, Exhibit "N" attached to Statement of Undisputed Facts). The language set forth in
his Complaints remain virtually unchanged from the first filing in 2008 and, as the evidence shows, the
claims asserted against Epstein from the outset were true.
The citation to public documents is a
convenient ruse; Epstein was not only liable for the molestation of the clients of Brad Edwards, he was
also a serial molester of minors — even as young as twelve years of age
(Exhibit "A" — Edwards'
Statement of Undisputed Material Facts paragraphs 1-43; Exhibit "D" — Statement of Virginia Roberts pp.
16-17). Epstein entered a plea of guilty to felony charges involving prostitution and the solicitation of a
minor for the purposes of prostitution (Exhibit "E" — Deposition of Jeffrey Epstein, March 17, 2010, pp.
101-103). Epstein also entered into an agreement with the United States Attorney's Office
acknowledging that approximately 34 other young girls could receive payments from him under the
Case No.: 502009CA040800XXXXMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 5 of 15
Federal Statute providing for compensation to victims of child abuse..
(Exhibit "N' — Edwards'
Statement of Undisputed Material Facts, paragraphs 41-43).
On July 6, 2010 Epstein ultimately paid to settle all three of the cases Edwards had filed against
him (Exhibit "N' — Edwards' Statement of Undisputed Material Facts, paragraphs 84-85). At Epstein's
request, the terms of the settlement were kept confidential. The sum that he paid to settle all these cases
in therefore not filed with this pleading and will be provided to the court for in camera review. Epstein
chose to make this payment as a result of a Federal Court ordered mediation process which he himself
sought. Epstein entered into the settlements in July 2010 more than seven months after he filed his
lawsuit against Edwards and before he filed his Second Amended Complaint alleging abuse of process on
August 22, 2011.
Further, Epstein could not have been the victim of any scheme to pump the cases against him
because he never paid to settle the cases until well after Edwards had left RRA and severed all connection
with Rothstein in December 2009 (Edwards' Affidavit attached to Statement of Undisputed Facts as
Exhibit "N," paragraph 20). Moreover, Epstein could not have suffered any damage as a result of the
perpetration of the Ponzi scheme by Rothstein because he was not an investor in the scheme.
Perhaps the most significant evidence presented in opposition to Epstein's Motion for Summary
Judgment is the telephone interview of Virginia Roberts submitted in Support of Edwards' Motion for
Punitive Damages (Exhibit "D"). In addition to the specious claims against Edwards relating to his
alleged involvement in a Ponzi scheme, Epstein, in asserting his claims, primarily relied upon the pursuit
by Edwards of testimony from his close friends and associates (See Second Amended Complaint,
paragraph 32, pp. 11-13). Reliance on these assertions is also threaded through Epstein's Motion for
Summary Judgment in his citation to the public documents referencing the pursuit of such discovery. But
as set forth in detail in Edwards' Motion for Final Summary Judgment (Exhibit "B") at pages 14-16, that
discovery was entirely appropriate and Epstein knew it. Specifically, as reflected in the statement of
Case No.: 502009CA040800XXXXMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 6 of 15
undisputed facts submitted by Mr. Edwards in support of his Motion for Summary Judgment, Edwards
had a sound legal basis for believing that Donald Trump, Allen Dershowitz, Bill Clinton, Tommy
Mattola, David Copperfield and Governor Bill Richardson had relevant and discoverable information
(Exhibit "A" — Edwards' Statement of Undisputed Facts, paragraphs 69-81). That belief was reinforced
by the testimony of Virginia Roberts (Exhibit "D" pp. 10-17, 21-23). Epstein's assertion of impropriety
in the pursuit of this discovery clearly evidences his bad faith attempts to attribute wrongdoing to
Edwards when he knew, in fact, that the pursuit of that discovery was entirely appropriate under the
circumstances of this case.
Finally, any attempt by Epstein to rely upon what he claims are undisputed facts to support his
Motion for Summary Judgment are undermined by his refusal to provide any testimony on the key issues
and evidence which would demonstrate the validity and strength of each of the claims brought against
him by Brad Edwards. Epstein's depositions of March 17, 2010 and January 25, 2012 were replete with
refusals of Epstein to testify based upon his Fifth Amendment privilege. Questions that Epstein refused
to answer in his depositions and the reasonable inferences that a fact finder would draw and which would
otherwise bear on the arguments submitted by Epstein in support of his Motion for Summary Judgment
are as follows:
• Question not answered: "I want to know whether you have any knowledge of evidence
that Bradley Edwards personally ever participated in devising a plan through which were
sold purported confidential assignments of a structured payout settlement?" Reasonable
inference: No knowledge that Brad Edwards ever participated in the Ponzi scheme.
o
o
Question not answered: "Specifically what are the allegations against you which you
contend Mr. Edwards ginned up?" Reasonable inference: No allegations against Epstein
were ginned up.
Question not answered: "Well, which of Mr. Edwards' cases do you contend were
fabricated?" Reasonable inference: No cases filed by Edwards against Epstein were
fabricated.
Case No.: 502009CA040800XXXXMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 7 of 15
• Question not answered: "Did sexual assaults ever take place on a private airplane on
which you were a passenger?" Reasonable inference: Epstein was on a private airplane
while sexual assaults were taking place.
• Question not answered: "How many minors have you procured for prostitution?"
Reasonable inference: Epstein has procured multiple minors for prostitution.
• Question not answered: "Is there anything in L.M.'s Complaint that was filed against
you in September of 2008 which you contend to be false?" Reasonable inference:
Nothing in L.M.'s complaint filed in September of 2008 was false — i.e., as alleged in
L.M.'s complaint, Epstein repeatedly sexually assaulted her while she was a minor and
she was entitled to substantial compensatory and punitive damages as a result.
• Question not answered: "I would like to know whether you ever had any physical
contact with the person referred to as Jane Doe in that [federal] complaint?" Reasonable
inference: Epstein had physical contact with minor Jane Doe as alleged in her federal
complaint.
• Question not answered: "Did you ever have any physical contact with E.W.?"
Reasonable inference: Epstein had physical contact with minor E.W. as alleged in her
complaint.
• Question not answered: "What is the actual value that you contend the claim of E.W.
against you has?" Reasonable inference: E.W.'s claim against Epstein had substantial
actual value.
(See Exhibit "A" — Edwards' Statement of Undisputed Material Facts, paragraphs 93-120
for page references.)
A jury could conclude, therefore, from the adverse inferences drawn against Epstein that he was
liable for the claims brought by Brad Edwards and that he had no basis for the pursuit of his efforts to
intimidate and extort Edwards and his clients in the pursuit of those claims.
The Litigation Privilege Does Not Bar the Claims of Abuse of Process and Malicious Prosecution
Epstein contends he is entitled to absolute immunity pursuant to the litigation privilege as to both
claims asserted by Edwards because all actions taken by him occurred during the litigation of his abuse of
process claim against Edwards. For support, he relies primarily on the decision of Wolfe v. Foreman,
2013 WL 3724763 (Fla. 3d DCA July 17, 2013), wherein the Third District found that the litigation
privilege barred both an abuse of process claim and a malicious prosecution cause of action. Wolfe is still
Case No.: 502009CA040800XXXXMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 8 of 15
on rehearing and, thus, is not a final opinion. As a result, it is not binding, nor persuasive. Moreover,
Wolfe undercuts the long-standing recognition of the viability of a claim for malicious prosecution in its
own District and other Florida state and federal courts. See, SCI Funeral Svs. of Fla., Inc. v. Henry, 839
So. 2d 702, n.4 (Fla. 3d DCA 2002) ("As the Levin court cited Wright v. Yurko, 446 So. 2d 1162, 1165
(Fla. 5th DCA, 1984), with approval, presumably the cause of action for malicious prosecution continues
to exist and would not be barred by the litigation privilege."); Boca Investors Group, Inc. v. Potash, 835
So. 2d 273, 275 (Fla. 3d DCA 2002) (Cope, J., concurring) (litigation privilege would not be a bar to a
malicious prosecution action); North Star Capital Acquisitions, LLC v. Krig, 611 Fed. Supp. 2d 1324
(M.D. Fla. 2009) ("However, not every event bearing any relation to litigation is protected by the
privileged because,... "if the litigation privilege applied to all actions preliminary to or during judicial
proceedings, an abuse of process claim would never exist, nor would a claim for malicious prosecution");
Cruz v. Angelides, 574 So. 2d 278 (Fla. 3d DCA 1991)("the law is well settled that a witness in a judicial
proceeding,... is absolutely immune from any civil liability, save perhaps malicious prosecution, for
testimony or other sworn statements which he or she gives in the course of the subject proceeding.");
Johnson v. Libow, 2012 WL 4068409 (Fla. 15th Jud. Cir. March 1, 2012)(the purpose of the litigation
privilege does not preclude the tort of malicious prosecution).
In Wright v. Yurko supra, the Fifth District Court of Appeal rejected the application of the
litigation privilege to a malicious prosecution action brought by a physician against his patients and an
expert after he successfully defended a malpractice claim. Also of significance is the Second District's
opinion in Olson v. Johnson, 961 So. 2d 351 (Fla. 2d DCA 2007). In that case, the court observed that the
litigation (or judicial) privilege would not apply to bar a malicious prosecution action which arose as a
result of a false accusation of criminal liability where the prosecution was based, in part, on the testimony
of the defendants in the criminal case.
The court ruled that the privilege (either absolute or qualified)
Case No.: 502009CA040800XXXXMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 9 of 15
which might otherwise apply to a defamation claim for statements made during the course of a judicial
proceeding did not bar a malicious prosecution claim.
In light of the implicit recognition by the Supreme Court in Levin that a claim of malicious
prosecution is not barred by the litigation privilege — an implicit recognition acknowledged by the Third
District itself — Epstein's reliance on Wolfe is misplaced. Wolfe is also factually distinguishable from
Edwards' claims against Epstein.
Wolfe involved a malicious prosecution action against attorneys.
Separate policy considerations might serve to impose additional limitations on the assertion of malicious
prosecution claims against attorneys — against whom alternative remedies exist such as bar disciplinary
proceedings. See Taylor v. McNichols, 243 P.2d 642 (Idaho 2010). Moreover, in light of the decisions in
Wright v. Yurko, supra and Olson v. Johnson, supra, the weight of authority supports the proposition that
the litigation privilege would not apply to malicious prosecution claims.
Both the Third and Fourth Districts have applied the litigation privilege to abuse of process
claims. However, Wolfe itself, and the decisions of the Third and Fourth Districts cited in Wolfe,
involved the litigation privilege as applied to claims of abuse of process by attorneys. None of the cases
involved the extraordinary actions of an individual party like Epstein who carried out a course of action
against Plaintiffs counsel with a singular purpose unrelated to any legitimate judicial goal. Under the
compelling facts of this case, where the actions of Epstein are coupled with the elements of malice and
absence of probable cause arising from the unfounded filing of the claims against Edwards, the litigation
privilege should not have any applicability to the abuse of process claim asserted by Edwards.
There are Disputed Issues of Fact Precluding Summary Judgment on the Abuse of Process Claim
An abuse of process claim requires pleading and proof of the following three elements: 1) that the
defendant made an illegal, improper or perverted use of process; 2) that the defendant had ulterior
motives or purposes in exercising such illegal, improper, or perverted use of process; and 3) that, as a
result of such action on the part of the defendant, the plaintiff suffered damage." See S&I Invs. v. Payless
Case No.: 502009CA040800XXXXMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 10 of 15
Flea Mkt., 36 So. 3d 909, 917 (Fla. 4th DCA 2010)(citation omitted). The case law is clear that on an
abuse of process claim a "plaintiff must prove that the process was used for an immediate purpose other
than that for which it was designed." Id. (citation omitted). Where the actions taken by a party in a
particular lawsuit are designed to coerce another into taking some collateral action not properly involved
in the proceeding a claim of abuse of process is stated. Miami Herald Publishing Company v. Ferre,
8636 F. Supp. 970 (S.D. Fla. 1985).
In a case for abuse of process, the question of whether the plaintiff's case satisfies the requisite
elements is largely a question for a jury. See Patrick John McGinley, 21 Fla. Prac., Elements of an Action
§ 50:1 (2013-2014 ed.)(citing Gatto v. Publix Supermarket, 111C. 387 So. 2d 377 (Fla. 3d DCA 1980)).
The usual case of abuse of process involves some form of extortion. Scozari v. Barone, 546 So.
2d 750, 751(Fla. 3d DCA 1989) (citing Bothmann v. Harrington, 458 So. 2d 1163, 1169 (Fla. 3d DCA
1984)). That is exactly what has transpired here. Epstein employed the extraordinary financial resources at
his disposal to intimidate his molestation victims and Edwards into abandoning their legitimate claims or
resolving those claims for substantially less than their just and reasonable value. Consequently, since
Epstein's sole purpose and ulterior motive for filing the complaint without probable cause was in an effort
to extort, to wit: to force his molestation victims and Edwards to settle for minimal amounts, that filing
and everything subsequently done to pursue the claims constitutes an abuse of process. See Exhs. A at 18-
27, C at 4-7. Because Edwards has conclusively demonstrated that Epstein's actions in pursuing his
claims were designed to coerce Edwards (and his client) to take some collateral action not properly
involved in the proceedings and did so with an ulterior purpose, summary judgment directed at the abuse
of process claim must fail. The damages suffered by Edwards include: (a) injury to his reputation; (b)
mental anguish, embarrassment and anxiety; (c) fear physical injury to himself and members of his
family; (d) the loss of the value of his time required to be diverted from his professional responsibility;
and (e) the cost of defending against Epstein's spurious and baseless claims. All the elements of the
Case No.: 5 02009 CA040 8 00XXXXMB AG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 11 of 15
claim for abuse of process have been satisfied. This case, then, falls within the parameters of the Third
District's Decision in Scozari v. Barone, supra in which the court reversed the entry of summary
judgment for the defendant on claims of malicious prosecution and abuse of process. With respect to the
abuse of process claim, the court stated that "if there was no reasonable basis in law and fact to bring the
action to impress a lien on property, and this was done without any reasonable justification under law and
to force or compel the appellant to resolve some custody dispute, induce the appellant to pay money, or
tie up the appellant's property, then there has been an abuse of process." Id at 752.
There are Disputed Issues of Fact Precluding Summary Judgment on the Claim of
Malicious Prosecution
Here, Epstein's voluntary dismissal of his abuse of process claims against Edwards amounted to a
bona fide termination of the proceedings. He knew his allegations were unsupported by evidence (See
discussion above at pages 3-6). Knowing he lacked any verifiable evidence against Edwards, on the eve
of the summary judgment hearing, Epstein effectively conceded that fact by voluntarily dismissing his
claims. Hence, it is evident that Epstein took voluntary dismissal of his claims because he knew he did
not have probable cause or an evidentiary basis to support the allegations. See Cohen v. Corwin, 980 So.
2d 1153 at 1156 (citing Union Oil of California, Amsco Division v. Watson, 468 So. 2d 349 at 354
(stating that "where a dismissal is taken because of insufficiency of the evidence, the requirement of a
favorable termination is met")). Accordingly, the manner of termination reflects on the merits of the case
and there was a bona fide termination of Epstein's civil proceeding against Edwards (See Judge Crow's
Order of March 29, 2012 denying Motion to Dismiss re: Issue of Bonafide Termination attached as
Exhibit "fn.
Epstein's only other issue with Edwards' counterclaim for malicious prosecution is that he did not
lack probable cause in pursing his claims against Edwards. As established by the record, Epstein did, in
fact, lack probable cause to assert his claims against Edwards (See discussion above). Epstein's purported
Case No.: 502009CA040800XXXXMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 12 of 15
reliance on public filings, including the Scherer Complaint against Rothstein is unavailing. As discussed
above, the evidence warrants the finding that Epstein knew that Edwards was legitimately pursuing the
claims on behalf of his clients which included the effort to secure testimony from Epstein's close
confidants. Therefore, Epstein cannot rely upon the referenced public documents to support his claims
against Edwards given that he knows that information to be untrue and he refuses to answer questions
about the veracity of the information. See Exh. G at pgs. 53:6-24; 78:16-24; 87:20-88:14. Consequently,
Epstein had no good faith basis to rely on such information.
Epstein's Assertion of his Fifth Amendment Privilege Gives Rise to Adverse Inferences
Pertinent to His Motion for Summary Judgment and Precludes His Reliance on Purported
Undisputed Facts
As discussed above, Epstein's multiple invocations of his Fifth Amendment Privilege results in
adverse inferences which directly impact the issues advanced in his Motion for Summary Judgment. "It
is well settled that the Fifth Amendment does not forbid adverse inferences against parties to civil actions
when they refuse to testify in response to probative evidence offered against them." Baxter v.
Palinigiano, 425 U.S. 308, 318 (1976); Accord, Vasquez v. State, 777 So. 2d 1200, 1203 (Fla. at 2001).
The reason for this rule "is both logical and utilitarian. A party may not trample upon the rights of others
and then escape the consequences by invoking a constitutional privilege — at least not in a civil setting."
Fraser v. Security and INV. Corp, 615 So. 2d. 841, 842 (Fla. 4th DCA 1993). The adverse inferences
drawn from Epstein's assertion of the Fifth Amendment undercut his claim of justifiable reliance based
upon the purported undisputed material facts to support his Motion for Summary Judgment.
Moreover, because Epstein elected to hide behind the shield of his right against self-incrimination
to preclude his disclosing any relevant information about the criminal activity at the center of his claims,
he was effectively barred from prosecuting his abuse of process claim against Edwards. Similarly, Epstein
should be barred from utilizing the Fifth Amendment privilege to secure summary judgment based upon
assertions of fundamental facts when Epstein refused to testify on essential issues pertinent to the
Case No.: 502009CA040800XXXXMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 13 of 15
arguments advanced in support of his Motion for Summary Judgment. Under the well-established "sword
and shield" doctrine, Epstein could not seek damages from Edwards while at the same time asserting a
Fifth Amendment privilege to block relevant discovery. See Exhs. B at 14-21, C at 18-25, G at 53:6-24;
78:16-24; 87:20-88:14. The same policies which underlie the sword and shield doctrine as applied to the
recovery of affirmative relief should also apply to attempts to advance positions with respect to a Motion
for Summary Judgment which would have the effect of securing relief against certain claims.
"[T]he law is well settled that a plaintiff is not entitled to both his silence and his lawsuit." Boys
& Girls Clubs of Marion County, Inc. v. JA., 22 So. 3d 855, 856 (Fla. 5th DCA 2009)(Griffin, J.,
concurring specially). Thus, "a person may not seek affirmative relief in a civil action and then invoke the
fifth amendment to avoid giving discovery, using the fifth amendment as both a 'sword and a shield.'"
DePalma v. DePalma, 538 So. 2d 1290, 1290 (Fla. 4th DCA 1989)(quoting DeLisi v. Bankers Insurance
Co., 436 So. 2d 1099 (Fla. 4th DCA 1983)). Put another way, "[a] civil litigant's fifth amendment right to
avoid self-incrimination may be used as a shield but not a sword. This means that a plaintiff seeking
affirmative relief in a civil action may not invoke the fifth amendment and refuse to comply with the
defendant's discovery requests, thereby thwarting the defendant's defenses." Rollins Burdick Hunter of
New York, Inc. v. Euroclassic Limited, Inc., 502 So. 2d 959 (Fla. 3d DCA 1983).. For the same reasons,
Epstein should be precluded from advancing arguments based on purported statements of undisputed fact
which cannot be effectively challenged in light of his assertion of the Fifth Amendment.
Epstein has
done precisely what well-established law prohibits.
Conclusion
Based upon the foregoing, the Defendant, Counter-Plaintiff, Bradley Edwards respectfully
submits that Jeffrey Epstein's Motion for Summary Judgment must be denied.
Case No.: 502009CA040800)000CMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 14 of 15
I HEREBY CERTIFY that a true and correct copy of the foregoing was sent via E-Serve to all
Counsel on the attached list, this / —7 day ofG7(>-,- , 2014.
WILLIAM B. KING
Florida Bar No.: 181773
Attorney E-Mail: wbk@searcylaw.com and
kar@searcylaw.com
Primary E-Mail: eservice@searcylaw.com
Secondary E-Mail: _ScarolaTeam@searcylaw.com
Searcy Denney Scarola Barnhart & Shipley, P.A.
2139 Palm Beach Lakes Boulevard
West Palm Beach, Florida 33409
Phone: (561) 686-6300
Fax: (561) 383-9456
Attorney for Bradley J. Edwards
Case No.: 502009CA040800)000(MBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 15 of 15
COUNSEL LIST
William Chester Brewer, Esquire
wcblaw@aol.com; wcbcg@aol.com
250 S Australian Avenue, Suite 1400
West Palm Beach, FL 33401
Phone: (561)-655-4777
Fax: (561)-835-8691
Attorneys for Jeffiey Epstein
Jack A. Goldberger, Esquire
jgoldberger@agwpa.com;
smahoney@agwpa.com
Atterbury, Goldberger & Weiss, P.A.
250 Australian Avenue South, Suite 1400
West Palm Beach, FL 33401
Phone: (561)-659-8300
Fax: (561)-835-8691
Attorneys for Jeffrey Epstein
Bradley J. Edwards, Esquire
staff.efile@pathtojustice.com
Fanner, Jaffe, Weissing, Edwards, Fistos &
Lehrman, FL
425 North Andrews Avenue, Suite 2
Fort Lauderdale, FL 33301
Phone: (954)-524-2820
Fax: (954)-524-2822
Attorneys for Jeffrey Epstein
Marc S. Nurik, Esquire
marc@nuriklaw.com
Law Offices of Marc S. Nurik
One E Broward Blvd., Suite 700
Fort Lauderdale, FL 33301
Phone: (954)-745-5849
Fax: (954)-745-3556
Attorneys for Scott Rothstein
Tonja Haddad Coleman, Esquire
tonja@tonjahaddad.com;
Debbie@Tonjahaddad.com;
efiling@tonjahaddad.com
Tonja Haddad, P.A.
315 SE 7th Street, Suite 301
Fort Lauderdale, FL 33301
Phone: (954)-467-1223
Fax: (954)-337-3716
Attorneys for Jeffrey Epstein
Fred Haddad, Esquire
Dee@FredHaddadLaw.com;
haddadfm@aol.com; fred@fredhaddadlaw.com
Fred Haddad, P.A.
One Financial Plaza, Suite 2612
Fort Lauderdale, FL 33394
Phone: (954)-467-6767
Fax: (954)-467-3599
Attorneys for Jeffrey Epstein
IN THE CIRCUIT COURT OF THE 15TH
JUDICIAL CIRCUIT IN AND FOR PALM
BEACH COUNTY, FLORIDA
Case No.:50 2009 CA 040800XXXXMBAG
JEFFREY EPSTEIN,
Plaintiff,
vs.
SCOTT ROTHSTEIN, individually, and
BRADLEY J. EDWARDS, individually,
Defendants,
STATEMENT OF UNDISPUTED FACTS
Defendant Bradley J. Edwards, Esq., offers the following specific facts as the undisputed
material facts in this case. Each of the following facts is numbered separately and individually to
facilitate Epstein's required compliance with Fla. R. Civ. P. 1.510(c) ("The adverse party shall
identify . . . any summary judgment evidence on which the adverse party relies.").
All
referenced exhibits and attachments have previously been filed with the Court and provided to
Epstein.
Sexual Abuse of Children By Epstein
1. Defendant Epstein has a sexual preference for young children. Deposition of
Jeffrey Epstein, Mar. 17, 2010, at 110 (hereinafter "Epstein Depo.") (Deposition Attachment
#1).
I When questioned about this subject at his deposition, Epstein invoked his Fifth Amendment right to
remain silent rather than make an incriminating admission. Accordingly, Edwards is entitled to the
adverse inference against Epstein that, had Epstein answered, the answer would have been unfavorable to
him. "Mt is well-settled that the Fifth Amendment does not forbid adverse inferences against parties to
EXHIBIT
2. Epstein repeatedly sexually assaulted more than forty (40) young girls on
numerous occasions between 2002 and 2005 in his mansion in West Palm Beach, Florida. These
sexual assaults included vaginal penetration. Epstein abused many of the girls dozens if not
hundreds of times. Epstein Depo. at 109 ("Q: How many times have you engaged in oral sex
with females under the age of 18r A: [Invocation of the Fifth Amendment]); Deposition of Jane
Doe, September 24, 2009 and continued March 11, 2010, at 527 (minor girl sexually abused at
least 17 times by Epstein) (hereinafter "Jane Doe Depo") (Deposition Attachment #2); id. 564-67
(vaginal penetration by Epstein with his finger), 568 (vaginal penetration by Epstein with a
massager); Deposition of L.M., September 24, 2009, at 73 (hereinafter "L.M. Depo")
(Deposition Attachment #3) (describing the manner in which Epstein abused her beginning when
LM was 13 years old, touching her vagina with his fingers and vibrator) at 74, line 12-13 (she
was personally molested by Epstein more than 50 times), at 164, line 19-23 and 141, line 12-13
and 605, line 3-6 (describing that in addition to being personally molested by Epstein she was
paid $200 per underage girl she brought Epstein and she brought him more than seventy (70)
underage girls - she told him that she did not want to bring him any more girls and he insisted
that she continue to bring him underage girls); Deposition of E.W., May 6, 2010 (hereinafter
"E.W. Depo") (Deposition Attachment till) at 115-116, 131 and 255 (describing Epstein's abuse
of her beginning at age 14 when he paid her for touching her vagina, inserting his fingers and
civil actions when they refuse to testify in response to probative evidence offered against them." Baxter
v. Palmigiano, 425 U.S. 308, 318 (1976); accord Vasquez v. State, 777 So.2d 1200, 1203 (Fla. App.
2001). The reason for this rule "is both logical and utilitarian. A party may not trample upon the rights of
others and then escape the consequences by invoking a constitutional privilege — at least not in a civil
setting." Fraser v. Security and Inv. Corp., 615 So.2d 841, 842 (Fla. App. 1993).
2
using a vibrator and he also paid her $200 for each other underage female E.W. brought him to
molest. She brought him between 20 and 30 underage females); Deposition of Jane Doe It4, date