Latest / The Vault: The Epstein Files / Mega Edition: Ghislaine Maxwell's Motion To Compel Attorney Work Product From Virginia Roberts (9/15/26)

Transcript

Mega Edition: Ghislaine Maxwell's Motion To Compel Attorney Work Product From Virginia Roberts (9/15/26) · The Vault: The Epstein Files

0:00
Speaker 1: What's up, everyone, and welcome back to the Epstein Chronicles.
0:04
Speaker 1: In this episode, we're diving right back into those court documents,
0:07
Speaker 1: and we're going to begin our look at the response
0:10
Speaker 1: to the motion to compel attorney-client communications and attorney work
0:14
Speaker 1: product materials. Case number 15-CV-07433-RWS. Virginia Roberts, Plaintiff. Ghislaine Maxwell,
0:19
Speaker 1: the Defendant. Plaintiff Virginia Roberts, by and through her undersigned counsel,
0:33
Speaker 1: hereby files this response to defendant's motion to compel all
0:37
Speaker 1: attorney-client communications and attorney work product placed at issue by
0:41
Speaker 1: plaintiff and her attorneys, DE-164. The motion should be denied
0:46
Speaker 1: in its entirety. Introduction. The defendant argues Ms. Roberts and
0:51
Speaker 1: two of her attorneys, Cassell and Edwards, have somehow placed
0:54
Speaker 1: at issue her confidential attorney-client communications and, therefore, have made
0:59
Speaker 1: a sweeping waiver of attorney-client privilege in this case. Defendant, however,
1:04
Speaker 1: fails to cite the controlling law on this issue. Federal
1:08
Speaker 1: Rule of Evidence 502. Enacted in 2008, Rule 502 was
1:13
Speaker 1: designed to block exactly the kind of argument the defendant
1:16
Speaker 1: is making. Rule 502 provides the litigants are entitled to
1:20
Speaker 1: the most protective laws on attorney-client privilege, either state law,
1:25
Speaker 1: where the disclosure was made, or federal law. The alleged
1:29
Speaker 1: disclosures in this case were made in Florida and under
1:32
Speaker 1: Florida law did not constitute any waiver of attorney-client privilege. Indeed,
1:37
Speaker 1: defendant does not reveal to the court that the Florida
1:40
Speaker 1: judge who handled the case during which the alleged waivers occurred,
1:44
Speaker 1: the Dershowitz case, has already considered and rejected their entirety,
1:48
Speaker 1: the very argument that defendant is advancing here. In addition,
1:53
Speaker 1: None of the alleged disclosures were made by Ms. Roberts, who,
1:57
Speaker 1: as the holder of the privilege, is the only individual
1:59
Speaker 1: with authority to waive it. Moreover, none of the alleged
2:03
Speaker 1: disclosures concern the substance of confidential attorney-client communication, and finally Ms.
2:08
Speaker 1: Roberts will not be seeking to introduce or otherwise take
2:12
Speaker 1: advantage of any confidential attorney-client communications in this case. Accordingly,
2:18
Speaker 1: for these and other reasons, the court should deny the
2:20
Speaker 1: defendant's motion in its entirety. The factual background. The CVRA case.
2:27
Speaker 1: The facts relevant to this issue begin in 2008 when
2:31
Speaker 1: attorney Bradley J. Edwards, soon joined by co-counsel Professor Paul Cassell,
2:35
Speaker 1: filed a pro bono action in the Southern District of
2:38
Speaker 1: Florida under the Crime Victims Rights Act. Filed on behalf
2:42
Speaker 1: of Jane Doe No. 1 and later Jane Doe No. 2.
2:45
Speaker 1: The CVRA action alleged the federal government had failed to
2:48
Speaker 1: protect the rights of Jane Doe 1 and other similarly
2:52
Speaker 1: situated victims of sex offenses committed by Epstein. See Declaration
2:56
Speaker 1: of Sigrid McCauley at Exhibit 1, Complaint Filed in Jane
3:00
Speaker 1: Doe 1 v. United States, No. 08-CV-80736, Southern District of Florida,
3:08
Speaker 1: July 7, 2008. Jane Does 1 and 2 achieved many
3:12
Speaker 1: victories in that case, including a ruling that the CVRA
3:15
Speaker 1: rights of victims could apply before charges were filed. Doze
3:20
Speaker 1: 1 and 2 v. United States, 817, F.S.U.P.P., 2D, 1337,
3:26
Speaker 1: Southern District of Florida, 2011. That they had standing to
3:30
Speaker 1: challenge the non-prosecution agreement reached between the government, Epstein, Jane
3:35
Speaker 1: Doze 1 and 2, v. United States, 950, F.S.U.P.P., 2D, 1262,
3:41
Speaker 1: Southern District of Florida, 2013, and that plea negotiations were
3:45
Speaker 1: not protected from disclosure by any federal rule of evidence.
3:50
Speaker 1: Doze v. United States, 749 F. 3D, 1999, 11th Circuit, 2014.
3:57
Speaker 1: Congress also followed the developments in the case closely, recently
4:01
Speaker 1: amending the CVRA to ensure that the future crime victims
4:05
Speaker 1: receive notice of any non-prosecution agreement entered into by the government.
4:10
Speaker 1: See Pub L, 114, 22, Title I, Section 113A, C
4:12
Speaker 1: and I, May 29, 2015, 129, 240-241, adding U.S. Code
4:23
Speaker 1: 18 Section 3771-A-9 to give crime victims the right to
4:27
Speaker 1: be informed in a timely manner of any plea bargain
4:30
Speaker 1: or deferred prosecution agreement. On December 30, 2014, Cassell and
4:35
Speaker 1: Edwards filed a motion pursuant to Rule 21 for a
4:39
Speaker 1: joinder in the action on behalf of two additional victims,
4:42
Speaker 1: Jane Doe 3 and Jane Doe 4. Jane Doe 3,
4:45
Speaker 1: Virginia Roberts, subsequently decided to reveal her name. The joinder
4:50
Speaker 1: motion argued that Jane Doe's three and four should be
4:53
Speaker 1: allowed to join the two existing plaintiffs in the action
4:56
Speaker 1: because they had suffered the same violations of their rights
4:59
Speaker 1: under the CVRA. Macaulay Declaration Exhibit 2, Jane Doe's three
5:04
Speaker 1: and four joined her motion. To establish that they were
5:07
Speaker 1: victims of Epstein sex crimes withstanding to join the suit,
5:11
Speaker 1: Jane Doe's three and four alleged that they had suffered
5:14
Speaker 1: sexual abuse from Epstein. For example, Jane Doe's three alleged
5:18
Speaker 1: that she had been forced by Epstein to have sexual
5:21
Speaker 1: relations with various persons, including Alan Dershowitz, who had been
5:25
Speaker 1: one of Epstein's defense attorneys negotiating the non-prosecution deal and
5:29
Speaker 1: arranging to keep it secret from the victims. Macaulay Declaration
5:33
Speaker 1: Exhibit 2 at 4. Jane Doe 3 also alleged that
5:37
Speaker 1: defendant I.E. Glenn Maxwell had participated in the sexual abuse
5:41
Speaker 1: of Jane Doe No. 3. Alan Dershowitz also filed a
5:44
Speaker 1: motion to intervene in To contest the allegations, Jane Doe
5:48
Speaker 1: III filed a response to Dershowitz's intervention motion. Macaulay Declaration
5:53
Speaker 1: Exhibit 3, Response to Motion to Intervene. The response explained
5:57
Speaker 1: that the allegations against Dershowitz were relevant to at least
6:01
Speaker 1: eight separate issues in the CVRA case. ID at 1826.
6:06
Speaker 1: The response also explained some of the evidence supporting the
6:09
Speaker 1: allegations against Dershowitz, including... Sworn testimony from one of Epstein's
6:14
Speaker 1: household employees, Juan Alessi, that Dershowitz came pretty often to
6:18
Speaker 1: Epstein's Florida mansion and got massages while he was there.
6:23
Speaker 1: Sworn testimony from another of Epstein's household employees, Alfredo Rodriguez,
6:28
Speaker 1: that Dershowitz was present alone at the home of Epstein
6:31
Speaker 1: without his family in the presence of young girls. Invocations
6:35
Speaker 1: of the Fifth Amendment rights to remain silent by three
6:37
Speaker 1: of Epstein's identified co-conspirators, Sarah Kellan, Nadia Marcinkova, and Adriana Musinska.
6:45
Speaker 1: When asked questions about whether Dershowitz had been involved with
6:48
Speaker 1: massages by the young girls. Refusals by Jeffrey Epstein to
6:52
Speaker 1: discuss Dershowitz's involvement, but instead to invoke his Fifth Amendment right.
6:57
Speaker 1: Several months later, on April 7, 2015, the court, Mara J.,
7:01
Speaker 1: denied Jane Doe III and Jane Doe IV as joined
7:04
Speaker 1: or motion. Macaulay Declaration Exhibit 4. Order denying Jane Doe
7:08
Speaker 1: III's motion to join. With regard to the eight separate
7:11
Speaker 1: issues as to which the allegations against Dershowitz were relevant,
7:15
Speaker 1: the court addressed only the first, establishing victim status, and
7:19
Speaker 1: found that the factual details regarding with whom and where
7:22
Speaker 1: the Jane Does engaged in sexual activities are immaterial and
7:26
Speaker 1: impertinent to this central claim, i.e. they were known victims
7:30
Speaker 1: of Mr. Epstein and the government owed them CVRA duties,
7:34
Speaker 1: especially considering that these details involve non-parties who are not
7:38
Speaker 1: related to the respondent government, ID at 5. Accordingly, the
7:42
Speaker 1: court struck the factual details from the victim's pleading as
7:46
Speaker 1: unnecessary at the time. The court specifically recognized, however, that
7:50
Speaker 1: the details could be reasserted by the parties to the action, i.e.
7:54
Speaker 1: Jane Doe 1 and Jane Doe 2, if they could
7:57
Speaker 1: demonstrate a good faith basis for believing that such details
8:00
Speaker 1: are pertinent to a matter presented for the court's consideration,
8:04
Speaker 1: ID at 6. Following the court's ruling, additional litigation has
8:08
Speaker 1: proceeded in the CVRA case. The Dershowitz case, while the
8:13
Speaker 1: CVRA case was moving forward in the Southern District of
8:16
Speaker 1: Florida on behalf of Jane Doe's 1 and 2, separate
8:19
Speaker 1: litigation developed between the pro bono attorneys who had filed
8:23
Speaker 1: the lawsuit, Cassell and Edwards, and Dershowitz. After the filing
8:27
Speaker 1: of the joinder motion in the CVRA case, Dershowitz took
8:30
Speaker 1: to the airwaves and attacked not only Jane Doe 3,
8:33
Speaker 1: but also Cassell and Edwards. Typical of these attacks, one
8:37
Speaker 1: was leveled on CNN in which Dershowitz alleged if they,
8:41
Speaker 1: Cassell and Edwards, had just done an hour's worth of
8:44
Speaker 1: research and work, they would have seen she is lying
8:46
Speaker 1: through her teeth. They're prepared to lie, cheat, and steal.
8:50
Speaker 1: These are unethical lawyers. They can't be allowed to have
8:53
Speaker 1: a bar card to victimize more innocent people. Hala Gharani,
8:56
Speaker 1: CNN Live, January 5th, 2015. Cassell and Edwards then filed
9:02
Speaker 1: a state defamation action against Dershowitz in Broward County, Florida.
9:06
Speaker 1: See McCauley Declaration Exhibit 5. Complaint in Edwards and Cassell v. Dershowitz.
9:11
Speaker 1: The complaint alleged that Dershowitz had engaged in a massive
9:14
Speaker 1: public media assault on the reputation and character of Cassell
9:18
Speaker 1: and Edwards. Idea 4. Ms. Roberts was not a party
9:22
Speaker 1: to this defamation lawsuit. The Florida court rejects a waiver
9:26
Speaker 1: of attorney-client's privilege argument. As Cassell and Edwards, Florida defamation
9:31
Speaker 1: action move forward, Dershowitz, sought to make an argument that
9:34
Speaker 1: they had somehow waived their client, Ms. Roberts' attorney-client privilege.
9:39
Speaker 1: On September 8, 2015, Dershowitz filed a motion to compel
9:42
Speaker 1: Cassell and Edwards to produce documents and additional responses to interrogatories.
9:48
Speaker 1: Macaulay Declaration Exhibit 6, Motion to Compel. In his motion,
9:52
Speaker 1: Dershowitz argued that Cassell and Edwards have waived any privilege
9:56
Speaker 1: or protection that would otherwise attach to a responsive document.
10:00
Speaker 1: and information by bringing this defamation action, placing at issue
10:04
Speaker 1: the truthfulness of Jane Doe No. 3's allegations against Dershowitz.
10:09
Speaker 1: Idea 3 and 5. In his motion and reply, pleading
10:13
Speaker 1: Macaulay Declaration Exhibit 8. Reply in support of motion to compel.
10:17
Speaker 1: Dershowitz argued that Cassell and Edwards' actions throughout the case
10:21
Speaker 1: constituted a waiver of attorney-client privilege. Cassell and Edwards responded,
10:26
Speaker 1: arguing that Ms. Roberts was not a party of the
10:28
Speaker 1: defamation action and that she was the only person who
10:32
Speaker 1: could waiver privilege. McCauley Declaration, Exhibit 7, at 4 and 6.
10:37
Speaker 1: Response in opposition to the motion to compel. Cassell and
10:40
Speaker 1: Edwards also argued that there had been no waiver. because
10:44
Speaker 1: confidential attorney-client communications with Ms. Roberts were not an issue
10:48
Speaker 1: in the defamation's case. Cassell and Edwards also later filed
10:52
Speaker 1: a surreply, further elaborating on the argument that Ms. Roberts
10:56
Speaker 1: had not waived any attorney-client privilege by publicly discussing her
11:00
Speaker 1: sexual abuse by Epstein and his associates. McCauley Declaration Exhibit
11:05
Speaker 1: 9 Surreply in Support of Opposition to Motion to Compel
11:09
Speaker 1: Cassell and Edwards also explained, that communications with Ms. Roberts
11:13
Speaker 1: were protected not only beginning in March 2014, but even
11:17
Speaker 1: earlier than that date when Ms. Roberts understood that she
11:20
Speaker 1: was obtaining legal services from Cassell and Edwards. Following this
11:24
Speaker 1: extensive briefing on waiver issues, on December 8, 2015, the
11:29
Speaker 1: Florida court, Lynch J., ruled denying Dershowitz's argument that attorney-client
11:33
Speaker 1: privilege had been waived. McCauley Declaration, Exhibit 10. Order denying
11:38
Speaker 1: motion to compel. Specifically, the court denied the motion to
11:41
Speaker 1: compel explaining pre-March 2014 communications are protected by the work
11:47
Speaker 1: product privilege and the witness has not waived the communications
11:51
Speaker 1: that were protected by the attorney-client privilege. Also, there was
11:55
Speaker 1: no waiver by Casella and Edwards by filing the suit.
11:59
Speaker 1: All right, folks, we're going to wrap up with part
12:00
Speaker 1: one there, and in the next episode, we'll pick up
12:03
Speaker 1: with part two. All of the information that goes with
12:06
Speaker 1: this episode can be found in the description box. What's
12:10
Speaker 1: up everyone and welcome back to the Epstein Chronicles. In
12:14
Speaker 1: this episode, we're picking right back up where we left
12:16
Speaker 1: off with the attempt by Ghislaine Maxwell to get access
12:20
Speaker 1: to attorney-client work privilege. Ms. Roberts' Deposition in the Defamation
12:27
Speaker 1: Case As the defamation action moved forward, Dershowitz subpoenaed Ms.
12:31
Speaker 1: Roberts to a deposition, Macaulay Declaration Exhibit 11, Composite Exhibit
12:37
Speaker 1: of Excerpts from Transcript of deposition of Ms. Roberts. During
12:41
Speaker 1: the deposition, held in Fort Lauderdale, Florida, Ms. Roberts was
12:46
Speaker 1: represented by the undersigned legal counsel who asserted objections to
12:50
Speaker 1: revealing attorney-client information where the questions called for revealing confidential
12:55
Speaker 1: attorney-client communications, CEG ID at 22 and 23, 131 and 32,
12:59
Speaker 1: 173 and 74, 183 and 208. During the deposition, Ms.
13:08
Speaker 1: Roberts specifically stated that I decide not to waive my
13:12
Speaker 1: attorney-client privilege at this time, idea 174. Ms. Roberts also
13:16
Speaker 1: denied that Cassell and Edwards had ever pressured her into
13:20
Speaker 1: identifying someone as being involved in her sexual abuse. The
13:24
Speaker 1: Settlement of the Defamation Case Ultimately, Cassell, Edwards, and Dershowitz
13:29
Speaker 1: agreed to settle their defamation case. That settlement included both
13:33
Speaker 1: public statement and confidential monetary payments. As part of the settlement,
13:37
Speaker 1: Cassell and Edwards withdrew their allegations against Dershowitz in the
13:41
Speaker 1: defamation case contained in the then-pending summary judgment motion. Macaulay Declaration,
13:47
Speaker 1: Exhibit 12 Notice of Withdrawal of Summary Judgment Motion As
13:51
Speaker 1: explained in the notice of withdrawal of this motion, the
13:54
Speaker 1: withdrawal of the reference filings is not intended to be
13:58
Speaker 1: and should not be construed as being an acknowledgment by
14:01
Speaker 1: Edwards and Cassell that the allegations made by Roberts were mistaken.
14:05
Speaker 1: Edwards and Cassell do acknowledge that the public filing in
14:08
Speaker 1: the Crimes Victim Rights Act case of their client's allegation
14:12
Speaker 1: against defendant Dershowitz became a major distraction from the merits
14:16
Speaker 1: of the well-founded Crime Victims Rights Act by causing delay and,
14:20
Speaker 1: as consequence, turned out to be a tactical mistake. All
14:23
Speaker 1: these actions settling the Florida defamation case took place in Florida.
14:29
Speaker 1: Legal Standards for Waiver A. Federal Rule of Evidence 502
14:33
Speaker 1: controls on the issue of waiver. Defendant asks this court
14:37
Speaker 1: to find that Ms. Roberts has somehow waived her attorney-client
14:41
Speaker 1: privilege regarding various communications in this case. This is no
14:45
Speaker 1: small step. The attorney-client privilege is one of the oldest
14:48
Speaker 1: recognized privileges for confidential communication. Swidler v. Berlin v. United
14:53
Speaker 1: States 524 U.S. 399 403 1999 The privilege purpose is
15:01
Speaker 1: to encourage full and frank communication between attorneys and their
15:05
Speaker 1: clients and thereby promote broader public interest in the observance
15:09
Speaker 1: of law and the administration of justice. 524 U.S. at
15:14
Speaker 1: 403 internal quotations omitted. In setting out the legal standards
15:19
Speaker 1: pertaining to waiving the attorney-client privilege, defendant fails to cite
15:23
Speaker 1: the controlling and protective law on the issue. In a
15:26
Speaker 1: federal case, issues of alleged waiver of attorney-client privilege must
15:30
Speaker 1: be resolved under the new standards in Federal Rule of
15:34
Speaker 1: Evidence 502. In 2008, Congress enacted Federal Rule of Evidence 502,
15:39
Speaker 1: which is entitled Attorney-Client Privilege and Work Product Limitations on Waiver.
15:45
Speaker 1: New Rule 502 places a number of protections in place
15:48
Speaker 1: to reduce litigation over claims that a party has somehow
15:52
Speaker 1: waived attorney-client privilege. See Generally Advanced Common Note, Rule 502. Notably,
15:58
Speaker 1: defendant does not discuss or even cite Rule 502 in
16:02
Speaker 1: her motion. The issue currently before the court is specifically
16:05
Speaker 1: controlled by 502c, which covers situations where a disclosure in
16:10
Speaker 1: a state proceeding is alleged in a federal proceeding. to
16:14
Speaker 1: establish waiver. Rule 502c provides the greater of protections found
16:19
Speaker 1: in federal or state law. c. Disclosure made in a
16:23
Speaker 1: state proceeding. When the disclosure is made in a state
16:26
Speaker 1: proceeding and is not the subject of a state court
16:28
Speaker 1: order concerning waiver, the disclosure does not operate as a
16:32
Speaker 1: waiver in a federal proceeding if the disclosure 1. would
16:36
Speaker 1: be a waiver under this rule if it had been
16:38
Speaker 1: made in federal proceeding or 2. It is not a
16:42
Speaker 1: waiver under the law of the state where the disclosure occurred.
16:46
Speaker 1: As is readily apparent from the text of the rule,
16:49
Speaker 1: there are two separate ways in which a party can
16:51
Speaker 1: prove that no waiver of attorney-client privilege has occurred. One,
16:56
Speaker 1: by demonstrating that no waiver exists under federal law, or two,
17:00
Speaker 1: by demonstrating that no waiver exists under the state law
17:03
Speaker 1: where the disclosure occurred. Between these two possibilities, the drafters
17:08
Speaker 1: of the rule decided to apply the most protective law
17:11
Speaker 1: that governs waiver. C. Fed. R. Evidence 502C. Advanced Communication Notes.
17:17
Speaker 1: The Advisory Committee on the Federal Rules of Evidence determined
17:21
Speaker 1: that the proper solution for the federal court is to
17:24
Speaker 1: apply the law that is most protective of privilege and
17:27
Speaker 1: work product. B. Florida Law. Florida's protective law on attorney-client
17:32
Speaker 1: privilege provides that neither an attorney nor a client may
17:35
Speaker 1: be compelled to divulge confidential communications between a lawyer and
17:40
Speaker 1: a client which were made during the rendition of legal services.
17:44
Speaker 1: Florida State Amendment 90-502-1NC Communication denotes more than just giving
17:52
Speaker 1: legal advice. It also includes giving information to the lawyer
17:56
Speaker 1: to enable them to render sound and informed advice. Higgins v. Gatorland, Kubota,
18:02
Speaker 1: LLC Century Insurance, 45, South 3rd, 73, 76, Florida 1st,
18:09
Speaker 1: District Court, 2010. Under Florida law, while the burden of
18:14
Speaker 1: establishing the attorney-client privilege usually rests on the party claiming it,
18:18
Speaker 1: 1st Union, National Bank v. Attorney, 824, Southern 2nd, 172, 185,
18:21
Speaker 1: Florida 1st, District Court, 2002, When communications appear on their
18:29
Speaker 1: face to be privileged, the burden is on the party
18:32
Speaker 1: seeking disclosure to prove facts which would make an exception
18:36
Speaker 1: to the privilege applicable. Ford Motor Company v. Hall & Edwards, 1997.
18:40
Speaker 1: SO2D 1148-1153. Florida 3rd District Court, 2008. Russo v. Hannon, 146.
18:42
Speaker 1: Southern District 66-70. Florida 3rd Court of Appeals, 2014. In
18:57
Speaker 1: this case, defendant does not appear to dispute that an
19:00
Speaker 1: attorney-client privilege exists with regard to the communications between Ms.
19:04
Speaker 1: Roberts and her attorneys. Rather, the defendant's argument is that
19:08
Speaker 1: this privilege has somehow been waived. See motion to compel
19:12
Speaker 1: at 1 and 2. Therefore, under Florida law, defendant must
19:16
Speaker 1: shoulder the burden of overcoming the privilege. Of course, because
19:19
Speaker 1: defendant failed to even cite, much less discuss, Florida law,
19:23
Speaker 1: she has not carried that burden. Defendant asserts that she
19:27
Speaker 1: can force disclosure of the privileged communications between Ms. Roberts
19:31
Speaker 1: and her counsel under the at-issue doctrine. To establish this
19:36
Speaker 1: alleged waiver, defendant's motion relies on a federal district court case,
19:40
Speaker 1: Hearn v. Ray, 68, FRD 547ED, Washington, 1975, which was
19:42
Speaker 1: cited in Bank Brussels Lambert v. Cranston, Lyonnaise, SA 210,
19:53
Speaker 1: FRD 506, 509, and 510, SDNY 2002, LSMJ. See motion
20:00
Speaker 1: to compel at 8. As discussed below, as a matter
20:03
Speaker 1: of controlling federal authority, these cases have been repudiated by
20:07
Speaker 1: the 2nd Circuit. And to the same effect, Florida law
20:11
Speaker 1: also rejects the expansive Hearn approach to waiver. See Guarantee
20:15
Speaker 1: Insurance Company v. Hefferman, Insurance Brokers, Inc., 300 FRD 590-593-95,
20:24
Speaker 1: Southern District of Florida, 2014, discussing Florida authorities. Florida law
20:30
Speaker 1: disfavors waiver of the attorney-client privilege and will not readily
20:34
Speaker 1: find an at-issue waiver. See Guarantee Insurance Company v. Hefferman
20:38
Speaker 1: Insurance Brokers, Inc., 300 FRD 590-593, Southern District, Florida, 2014.
20:46
Speaker 1: Citing Coates v. Ackerman, Centerfit, and Iteson, PA, 940 Southern District, 504-508, Florida,
20:54
Speaker 1: 2nd District, 2006. Refusing to find waiver based on the
20:58
Speaker 1: at-issue doctrine. In contrast to Hearn, under Florida law, at-issue
21:03
Speaker 1: waiver only occurs... when a party raises a claim that
21:07
Speaker 1: will necessarily require proof by way of a privileged communication.
21:12
Speaker 1: Coats 940, Southern District at 508, quoting Jenny versus Air Data,
21:18
Speaker 1: Wyman Incorporated 846, Southern 2nd District 664, 668, Florida, 2nd
21:21
Speaker 1: District Court. Emphasis in original. Indeed, in 2014, the Southern
21:29
Speaker 1: District of Florida rejected the Hearn at-issue analysis and instead
21:33
Speaker 1: adopted the analysis of the Third Circuit as outlined in Roan, Polank, Rohrer, Inc. v. Home,
21:41
Speaker 1: Indemnity Company, 32F. 3D. 851, Third Circuit, 1994, Guaranteed Insurance, 300FRD, at 595.
21:51
Speaker 1: The Third Court deemed the Hearn test to be of
21:54
Speaker 1: dubious validity because although it dresses up its analysis with
21:58
Speaker 1: a checklist of factors, it appears to rest on a
22:01
Speaker 1: conclusion that the information sought is relevant and should in
22:05
Speaker 1: fairness be disclosed. Idea 864. The Third Circuit specifically rejected
22:10
Speaker 1: Hearn because relevance is not the standard for determining whether
22:14
Speaker 1: or not evidence should be protected from disclosure as privileged.
22:19
Speaker 1: Roan 32F. 3D at 863. Florida law tracks that the Third
22:25
Speaker 1: Circuit C-300 FRD at 593 and 95. Also under Florida law,
22:31
Speaker 1: the client, not her attorneys, holds the attorney-client privilege. See
22:35
Speaker 1: Florida State 90.5023. Also see Florida Statute 90.5022. A client
22:44
Speaker 1: has a privilege to refuse to disclose and to prevent
22:47
Speaker 1: any other person from disclosing the contents of confidential communications
22:52
Speaker 1: when such other person learned of the communications because they
22:55
Speaker 1: were made in the rendition of legal services to the client.
22:59
Speaker 1: Some Florida courts have even recognized serious due process issues
23:03
Speaker 1: could be created by a procedure through which a client
23:06
Speaker 1: lost their privilege without an opportunity to be heard in
23:09
Speaker 1: the proceedings. CEG Rogers v. State, 742 Southern District, 827-829,
23:17
Speaker 1: Florida 2nd District Court, 1999. Under Florida law, so long
23:22
Speaker 1: as a client has a reasonable expectation of privacy in
23:26
Speaker 1: the communication under Section 90-507, the privilege is protected. McWatters v. State,
23:33
Speaker 1: 36 Southern District, 613-636, Florida, 2010. Also under Florida law,
23:41
Speaker 1: Only the client, not her attorney, can waive attorney-client privilege.
23:45
Speaker 1: See Savino v. Luciano, 92 Southern District, 817 Florida, 1957.
23:50
Speaker 1: Coates v. Ackerman, Centerfit, Edison, PA 940, Southern 2nd District,
23:56
Speaker 1: 504 Florida, 2nd District Court, 2006. And Genovese v. Provident Life,
24:02
Speaker 1: an accident insurance company, 74, Southern District, 1064 Florida, 2011.
24:10
Speaker 1: All right, folks, we're going to wrap up this episode here.
24:12
Speaker 1: And in the next episode, talking about this topic, we're
24:15
Speaker 1: going to pick up where we left off. All of
24:18
Speaker 1: the information that goes with this episode can be found
24:21
Speaker 1: in the description box. What's up, everyone, and welcome back
24:25
Speaker 1: to the Epstein Chronicles. In this episode, we're going to
24:29
Speaker 1: dive right back into the court documents, and we're going
24:32
Speaker 1: to continue taking a look at Ghislaine Maxwell's attempt to
24:35
Speaker 1: gain access to attorney work client privilege between Virginia Roberts
24:41
Speaker 1: and Virginia's lawyers. Federal Law Rather than discuss Florida privilege law,
24:47
Speaker 1: defendant exclusively cites federal case law. See Motion to Compel
24:51
Speaker 1: 2 and 3. Yet, as this court has previously held
24:56
Speaker 1: in ruling on an earlier privilege motion made by the defendant,
24:59
Speaker 1: state law generally provides the rule of decision in this
25:03
Speaker 1: diversity case. See Maxwell v. Roberts, D.E. 135, at 6-216-WL-175918,
25:12
Speaker 1: at 6, Applying New York Privilege Law, citing Allied Irish
25:17
Speaker 1: Banks v. Bank of America, North America 240, FRD 96-102,
25:22
Speaker 1: SDNY 2007. Because this court's subject matter jurisdiction is based
25:27
Speaker 1: upon diversity, state law provides the rule of decision concerning
25:32
Speaker 1: the claim of attorney-client privilege. Accordingly, an argument can be
25:36
Speaker 1: made that New York state law applies in this case,
25:39
Speaker 1: but defendant does not explain why she jumps to federal law.
25:43
Speaker 1: As explained above, in the particular context of a waiver argument,
25:47
Speaker 1: Federal Rule of Evidence 502 applies the more protective of
25:51
Speaker 1: state law or federal law in determining whether a waiver
25:55
Speaker 1: of privilege has occurred. In this case, the controlling federal
25:59
Speaker 1: law is at least as protective as Florida law, The
26:03
Speaker 1: controlling federal law here comes from the Second Circuit, including
26:08
Speaker 1: the County of Erie 546 F3D, 222 Second Circuit 2008,
26:14
Speaker 1: a case not even cited, much less discussed, by the defendant,
26:18
Speaker 1: in view of the importance of the attorney-client privilege, the
26:21
Speaker 1: Second Circuit, in that case, held that any finding of
26:25
Speaker 1: waiver should be made with caution. Rather than cite this
26:28
Speaker 1: controlling Second Circuit precedent, defendant, relies on a 2002 case
26:33
Speaker 1: from this court applying the Hearn at-issue doctrine. See motion
26:37
Speaker 1: to compel at 8, citing Bank Brussels Lambert v. Credit Lyonnais,
26:41
Speaker 1: SA 210 FRD 506, 509 and 510 SDNY 2002, Ellis
26:43
Speaker 1: Magistrate Judge, quoting Hearn v. Ray 68 FRD 574, 581
26:46
Speaker 1: ED Washington 1975. Defendant goes on to argue that the
26:49
Speaker 1: court's have generally applied the Hearn at-issue doctrine liberally, finding
27:04
Speaker 1: a broad waiver of attorney-client privilege where a party asserts
27:08
Speaker 1: a position, the truth of which can only be assessed
27:11
Speaker 1: by examination of the privileged communication. Motion to compel at 8.
27:16
Speaker 1: Defendant fails to recognize that the Second Circuit has explicitly
27:20
Speaker 1: disavowed the Hearn doctrine. In County of Erie 546 F. 3D
27:24
Speaker 1: 222 Second Circuit 2008, The Second Circuit explained that courts
27:31
Speaker 1: in our circuit and others have criticized Hearn and have
27:35
Speaker 1: applied its tests unevenly. At 227 and 28, the Second
27:40
Speaker 1: Circuit also noted that the Hearn test has been subject
27:43
Speaker 1: to academic criticism. See Richard Marcus, The Perils of Privilege,
27:47
Speaker 1: Waiver and the Litigator, 84 Michigan Revised Copy 1605-1628 and 29-1986.
27:57
Speaker 1: identifying the faults in the Hearn approach. In light of
28:00
Speaker 1: these strong criticisms of Hearn, the Second Circuit decided that
28:04
Speaker 1: we agree with its critics that the Hearn test cuts
28:08
Speaker 1: too broadly and therefore conclude that the district court erred
28:12
Speaker 1: in applying it here. Nowhere in the Hearn test is
28:15
Speaker 1: found the essential element of reliance on privileged advice in
28:18
Speaker 1: the assertion of the claim or defense in order to
28:21
Speaker 1: effect a waiver. 546 F. 3d at 229. The Second Circuit,
28:27
Speaker 1: held that for an issue waiver to occur, a party
28:31
Speaker 1: must rely on privileged advice from his counsel to make
28:34
Speaker 1: his claim or his defense. In light of the Second
28:37
Speaker 1: Circuit Court's holding, recent cases from this court have explained
28:41
Speaker 1: that reliance on privileged advice in the assertion of the
28:44
Speaker 1: claim or defense is an essential element of a claim waiver.
28:49
Speaker 1: Aristocrat Leisure Limited v. Deutsche Bank Trust, Company of America's,
28:54
Speaker 1: For the sake of completeness, it may be relevant to
28:57
Speaker 1: note that New York State Privilege applies the same specific
29:00
Speaker 1: protective standard. See Bank of New York Mellon, 42 Miscellaneous
29:04
Speaker 1: 3D-171-177-977 NYS 2D 560-565 Supreme Court, 2013. At-issue waiver occurs
29:30
Speaker 1: when the party has asserted a claim or defense that
29:34
Speaker 1: he intends to prove by use of the privileged materials,
29:37
Speaker 1: an example of an affirmative act that does not constitute
29:39
Speaker 1: a privilege. at-issue waiver of privilege is a party asserting
29:44
Speaker 1: as an affirmative defense its reliance upon the advice of counsel.
29:48
Speaker 1: The Discussion Ms. Roberts did not waive her attorney-client privilege
29:52
Speaker 1: when Edwards and Cassell filed and pursued their own defamation
29:56
Speaker 1: action against Alan Dershowitz. Defendant's lead argument is that Cassell
30:01
Speaker 1: and Edwards waived Ms. Roberts' attorney client privilege when they
30:04
Speaker 1: filed and pursued a defamation action against Alan Dershowitz. See
30:08
Speaker 1: motion to compel at 10. This claim is meritless for
30:11
Speaker 1: numerous reasons, including the fact, not disclosed by the defendant,
30:15
Speaker 1: that this very argument has been fully litigated before the
30:19
Speaker 1: Florida court handling that defamation action, which specifically rejected any
30:24
Speaker 1: finding of waiver. A. The Florida court presiding over the
30:28
Speaker 1: defamation action has already rejected the same waiver claim that
30:32
Speaker 1: defendant is advancing here. The claim that Cassell and Edwards
30:36
Speaker 1: somehow waived Ms. Roberts' attorney client by pursuing their own
30:40
Speaker 1: personal defamation action against Dershowitz has already been the subject
30:45
Speaker 1: of extensive briefing and ultimately a Florida court ruling. Defendant
30:50
Speaker 1: has scoured the docket in the Dershowitz defamation case to
30:53
Speaker 1: collect every flyspeck of information that she believes support her
30:57
Speaker 1: argument that a waiver has taken place, see motion to
31:00
Speaker 1: compel at 10 through 12, and numerous associated exhibits. But, remarkably,
31:06
Speaker 1: she has not revealed to this court the most relevant
31:09
Speaker 1: information from the docket, that the Florida court considered the
31:12
Speaker 1: same waiver issues and rejecting the same arguments that the
31:15
Speaker 1: defendant now advances. This Florida court ruling, applying Florida law,
31:20
Speaker 1: is controlling here. As discussed above in the factual section
31:24
Speaker 1: of this response, In the Florida case, Dershowitz filed a
31:27
Speaker 1: motion to compel advancing legal and factual arguments identical to
31:32
Speaker 1: those the defendant is advancing here. See McCauley Declaration, Example
31:36
Speaker 1: 6 at 3. Dershowitz's motion to compel arguing that Cassell
31:40
Speaker 1: and Edwards have waived any privilege or protection that would
31:44
Speaker 1: otherwise attach to responsive documents and information by bringing this
31:48
Speaker 1: defamation action, placing at issue the truthfulness of Jane Doe
31:52
Speaker 1: 3's allegations against Dershowitz. citing Hearn v. Ray, 68, FRD, 574-581, E.D. Washington, 1975.
32:04
Speaker 1: Dershowitz claimed that information Ms. Roberts had confidentially provided to
32:08
Speaker 1: Cassell and Edwards as her attorneys had become at issue
32:11
Speaker 1: in the defamation action, Macaulay Declaration, Example 6, at 4
32:16
Speaker 1: and 5. Dershowitz argued broadly that a whole host of
32:19
Speaker 1: alleged attorney-client communications were at issue in this case. including
32:24
Speaker 1: one Jane Doe number three's allegations against Dershowitz asserted in
32:28
Speaker 1: the action caption Jane Doe number one versus the United
32:31
Speaker 1: States of America case number zero eight CV eight zero
32:35
Speaker 1: seven three six. South District of Florida, the federal action
32:40
Speaker 1: to Cassell and Edwards investigation into Jane Doe three's allegations
32:45
Speaker 1: against Dershowitz three Cassell and Edwards assertion in the complaint
32:49
Speaker 1: that Dershowitz was an alleged participant in the criminal conduct
32:53
Speaker 1: committed by Jeffrey Epstein. And four, Jane Doe No. 3's
32:56
Speaker 1: whereabouts and activities during the time when she claims to
33:00
Speaker 1: have been sex slave for Epstein. Example 6 at 3.
33:05
Speaker 1: As the briefing on the issue continued, in an October 26,
33:08
Speaker 1: 2015 response filing, Dershowitz argued that Ms. Roberts' public statements
33:13
Speaker 1: waived the privilege, along with her actions by her attorneys,
33:16
Speaker 1: Cassell and Edwards, Example 8 at 5 and 8. After
33:20
Speaker 1: all these arguments were fully briefed, the Florida court, Lynch J.,
33:24
Speaker 1: rejected Dershowitz's arguments that any waiver of the attorney-client privilege
33:28
Speaker 1: had taken place. McCauley Declaration Example 10 at 1. Defendant
33:33
Speaker 1: counterclaimed plaintiff's motion to compel production of documents and complete
33:37
Speaker 1: responses to interrogatories is hereby denied. In a December 8,
33:42
Speaker 1: 2015 order, Judge Lynch provided a short explanation of his
33:46
Speaker 1: reasoning and entered an order denying Dershowitz waiver motion. In
33:50
Speaker 1: her pending motion to compel, defendant recycles the same arguments
33:54
Speaker 1: that Dershowitz made, such as the claim that Cassell and
33:57
Speaker 1: Edwards waived privilege by filing suit, motion to compel at 10,
34:02
Speaker 1: that her March 2011 interview with Scarola and Edwards was
34:05
Speaker 1: a waiver, ID at 10, and other similar claims, ID
34:08
Speaker 1: at 11 through 13. but Dershowitz already litigated these issues
34:13
Speaker 1: a few months ago in the Dershowitz case, and his
34:16
Speaker 1: claims were rejected by the Florida court. Defendant is now
34:19
Speaker 1: collaterally e-stopped from re-litigating these identical issues here because Dershowitz
34:25
Speaker 1: had a full and fair opportunity to litigate those issues
34:29
Speaker 1: and defendant was in common interest agreement with Dershowitz at
34:32
Speaker 1: the time. The doctrine of collateral e-stopple protects litigants and
34:37
Speaker 1: the courts from re-litigating identical issues and and promotes efficiency
34:41
Speaker 1: by barring unnecessary litigation. See Park Lane Hosiery Company, Inc. v. Shore,
34:49
Speaker 1: 439 U.S. 322-326-1979. As this court explained, for collateral estoppel
34:56
Speaker 1: to apply, there must be a full and fair decision,
35:00
Speaker 1: and fair opportunity to litigate the decision that now controls
35:03
Speaker 1: the issue and the prior action must be identical to
35:07
Speaker 1: and decisive of the issue itself. in the instant action.
35:14
Speaker 1: A non-party can be bound by a decision so long
35:21
Speaker 1: as her interests were effectively represented. As this court can
35:28
Speaker 1: readily determine from reviewing the pleadings Dershowitz filed in the
35:31
Speaker 1: Florida case, see McCauley Declaration at 6 and 8, Dershowitz
35:36
Speaker 1: fully briefed, identical issues to those presented here. and he
35:40
Speaker 1: was effectively representing Maxwell at the time. The elements of
35:43
Speaker 1: collateral estoppel apply. Moreover, entirely apart from collateral estoppel doctrine,
35:49
Speaker 1: Judge Lynch's decision is highly persuasive. Judge Lynch was the
35:54
Speaker 1: presiding judge over the Dershowitz matter, so he was intimately
35:57
Speaker 1: familiar with, for example, what matters were at issue in
36:01
Speaker 1: that particular case. Moreover, Judge Lynch is, of course, a
36:05
Speaker 1: Florida judge skilled in applying Florida legal principles. His ruling
36:10
Speaker 1: on whether a waiver of attorney-client privilege existed under Florida
36:13
Speaker 1: law should be given heavy weight here. See Elliott Associates
36:17
Speaker 1: LP v. Banco de la Nación 194F. 3D 363-370 2nd Circuit 1999. Finally,
36:21
Speaker 1: defendant's briefing entirely ignores even the existence of Judge Lynch's ruling.
36:33
Speaker 1: In such circumstances where the defendant has failed to offer
36:36
Speaker 1: any reason for questioning Judge Lynch's holding, this court should
36:39
Speaker 1: follow Judge Lynch's lead and hold that no waiver of
36:43
Speaker 1: the attorney-client privilege exists under Florida law. And because Florida
36:47
Speaker 1: law controlled when the disclosure took place under FedR Evidence 502C,
36:52
Speaker 1: no waiver exists in this proceeding. All right, folks, we're
36:56
Speaker 1: going to wrap up right there. And in the next episode,
36:58
Speaker 1: we'll pick up where we left off. All of the
37:01
Speaker 1: information that goes with this episode can be found in
37:04
Speaker 1: the description box. What's up, everyone, and welcome back to
37:07
Speaker 1: the Epstein Chronicles. In this episode, we're diving right back
37:11
Speaker 1: into those court documents, and we're going to pick up
37:13
Speaker 1: where we left off with Glenn Maxwell attempting to get
37:18
Speaker 1: access to privileged lawyer-client information. Actions by Cassell and Edwards
37:24
Speaker 1: do not waive Ms. Roberts' attorney-client privilege. Not only has
37:28
Speaker 1: Judge Lynch already ruled on the attorney-client privilege issue, but
37:31
Speaker 1: his ruling was entirely correct. Defendant's arguments rest on the
37:35
Speaker 1: proposition that Casell and Edwards had authority to waive Ms.
37:39
Speaker 1: Roberts' privilege while they pursued their Florida defamation action. But
37:44
Speaker 1: in filing their own personal defamation claims against Dershowitz in
37:48
Speaker 1: a lawsuit where Ms. Roberts was not a party, Casell
37:51
Speaker 1: and Edwards were not acting on Ms. Roberts' behalf. Defendant
37:55
Speaker 1: never attempts to even explain much less prove how that
37:59
Speaker 1: defamation action could have benefited Ms. Roberts. And Florida law
38:03
Speaker 1: is clear that when attorneys are not acting on the
38:06
Speaker 1: client's behalf, they cannot waive their client privilege. See Charles Earhart,
38:12
Speaker 1: Florida Practice Evidence, Section 502.6, 2015, Shedder v. Shedder, 239,
38:14
Speaker 1: 2nd Edition, 51 and 52, Florida 4th, DCA, 1970. To
38:26
Speaker 1: find an attorney waived his client's privilege, a clear record
38:29
Speaker 1: must exist concerning the attorney attorney to waive privilege. See
38:34
Speaker 1: Integration Services Incorporated v. AT & T 06-CIV-1863. JGK 2008
38:36
Speaker 1: WL 318343 at 2 SDNY February 4, 2008. Here, to
38:52
Speaker 1: the contrary, the record is clear that Ms. Roberts did
38:55
Speaker 1: not authorize any waiver of her attorney-client privilege. See McCauley Declaration,
39:00
Speaker 1: Example 13. The Affidavit of Ms. Roberts Accordingly, under Florida law,
39:05
Speaker 1: Cassell and Edwards' actions did not waive Ms. Roberts' privilege.
39:10
Speaker 1: The main examples defendant offers in support of her waiver
39:14
Speaker 1: argument come from a summary judgment motion that Cassell and
39:17
Speaker 1: Edwards filed. See Motion to Compel at 16. Of course
39:21
Speaker 1: that motion was filed on their behalf, not Ms. Roberts.
39:24
Speaker 1: To be sure, that motion contained, among other supporting information,
39:28
Speaker 1: a sworn affidavit for Ms. Roberts. But the routine step
39:32
Speaker 1: of submitting an affidavit is not a waiver of attorney-client protections,
39:37
Speaker 1: as discussed at greater length in Part 2. And in
39:41
Speaker 1: any event, defendant does not include that affidavit among her
39:44
Speaker 1: supporting materials to her motion, much less explained, how the
39:48
Speaker 1: recitation of factual information in that affidavit constitutes a waiver
39:53
Speaker 1: by Ms. Roberts with respect to communications with her attorneys.
39:57
Speaker 1: See Coon v. State 463, Southern District 201, 203, and 04, Florida, 1985.
40:03
Speaker 1: No waiver when the client merely discloses facts which were
40:08
Speaker 1: a part of the communication with the client's attorney. Ms.
40:12
Speaker 1: Roberts has not waived her privilege. C. Ms. Roberts' confidential
40:18
Speaker 1: communication with her attorneys were never at issue in the
40:21
Speaker 1: Florida Dershowitz litigation. Defendant's argument that Ms. Roberts' attorney's client
40:26
Speaker 1: privilege has been waived under the at-issue doctrine also fails
40:31
Speaker 1: under Florida law because her confidential communications were never at
40:35
Speaker 1: issue in the Dershowitz litigation. Florida law on when confidential
40:40
Speaker 1: attorney-client communications are at issue comes from the Florida Supreme
40:44
Speaker 1: Court's decision in in Savino v. Luciano, 92, Southern 2nd District, 817, Florida, 1957. There,
40:54
Speaker 1: the Florida Supreme Court announced the test for determining whether
40:58
Speaker 1: confidential communications were at issue, as whether a claim or
41:03
Speaker 1: defense would necessarily require the privilege matter be offered in evidence,
41:08
Speaker 1: ID at 819. See also Diaz-Versin v. Walbridge-Aldinger Company, 54,
41:15
Speaker 1: Southern 3rd District, 1007, 1011, Florida 2nd District, DCA, 2010.
41:23
Speaker 1: More recent decisions from Florida have emphasized that Savino does
41:28
Speaker 1: not mean that a party waives attorney-client privilege merely by
41:31
Speaker 1: bringing or defending a lawsuit. Coates v. Ackerman, Centerfit v. Edison, PA, 940,
41:38
Speaker 1: Southern 2nd District, 504, Florida, 2nd District, DCA, 2006. Instead,
41:45
Speaker 1: waiver occurs only when a party must necessarily use the
41:48
Speaker 1: privilege information to establish its claim or defense. ID at
41:54
Speaker 1: 510 and 11. Most recently, in Genovese v. Provident Life
41:58
Speaker 1: and Accident Insurance Company, 74, Southern 3rd District, 1064-1069, Florida, 2011,
42:02
Speaker 1: as revised on denial of regulation, November 10, 2011, The
42:12
Speaker 1: Florida Supreme Court cited both Coates and Savino to hold
42:15
Speaker 1: that the issue doctrine always discovery of privilege material only
42:20
Speaker 1: when the holder of the privilege, the client, raises the
42:23
Speaker 1: advice of counsel as a claim or defense in the
42:26
Speaker 1: action and the communication is essential to the claim or defense.
42:30
Speaker 1: Under these restrictive standards, Ms. Roberts' communications were never at
42:34
Speaker 1: issue in her attorney's personal defamation case against Dershowitz. Consider,
42:40
Speaker 1: for example, a typical allegation Cassell and Edwards complain. Immediately
42:44
Speaker 1: following the filing of what defendant Dershowitz knew to be
42:48
Speaker 1: an entirely proper and well-founded pleading, Dershowitz initiated a massive
42:53
Speaker 1: public media assault on the reputation and character of Bradley J.
42:57
Speaker 1: Edwards and Paul G. Cassell, accusing them of intentionally lying
43:01
Speaker 1: in their filing or having leveled knowingly false accusations against
43:05
Speaker 1: the defendant Dershowitz without ever conducting any investigation of the
43:09
Speaker 1: credibility of of the accusations and of having acted unethically
43:14
Speaker 1: to the extent that their willful misconduct warranted and required disbarment.
43:19
Speaker 1: Macaulay Declaration Example 5 at 4 As is immediately apparent,
43:25
Speaker 1: this allegation does not require an examination of Ms. Roberts'
43:28
Speaker 1: confidential communication with her attorneys. Instead, it requires an assessment
43:34
Speaker 1: of Dershowitz's state of mind with regard to his knowledge
43:37
Speaker 1: of the information and that Cassell and Edwards had to
43:40
Speaker 1: support the filing of the allegation, and as supporting exhibits
43:44
Speaker 1: to the pleadings Cassell and Edwards filed made clear, the
43:47
Speaker 1: adequacy of their investigation could be readily established from many
43:51
Speaker 1: sources that did not have any connection to what Ms.
43:55
Speaker 1: Roberts may or may not have told them in confidence.
43:59
Speaker 1: CEG McCauley Declaration, Example 3, 26-38, recounting information supporting allegations
44:07
Speaker 1: against Dershowitz, such as sworn testimony from household employees and
44:12
Speaker 1: invocations of the Fifth Amendment by Epstein and his co-conspirators.
44:16
Speaker 1: To be sure, Dershowitz tried to make an argument that Ms.
44:20
Speaker 1: Roberts' communications with her attorneys might have had some arguable
44:24
Speaker 1: relevance to the case, but Judge Lynch rejected that very argument,
44:28
Speaker 1: and quite properly so. Relevance is insufficient to waive privilege
44:32
Speaker 1: under Florida law. Guarantee Insurance 300 FRD at 594, citing
44:38
Speaker 1: Coyne v. Schwartz, Gold, Cohen, Zakarin, and Kotler, PA, 715,
44:45
Speaker 1: Southern 2nd District, 1021, 1022, Florida 4th District, DCA, 1998.
44:52
Speaker 1: Client does not waive the attorney-client privilege simply because her
44:56
Speaker 1: credibility could be impeached by communications with her former attorney,
45:00
Speaker 1: see Jenny v. Airedata Wyman, Inc., 846, 1022, Southern 2nd District, 664, 668, Florida,
45:10
Speaker 1: 2nd District, DCA, 2003. Accordingly, under Florida law, Ms. Roberts'
45:15
Speaker 1: confidential communications with her attorneys were never at issue in
45:19
Speaker 1: the Florida litigation. D. Defendant has not met the other
45:24
Speaker 1: requirements for showing waiver of attorney-client privilege. For the foregoing reasons,
45:28
Speaker 1: defendant has failed to make the required showing for an
45:32
Speaker 1: at-issue waiver of attorney-client privilege. But even more fundamentally, defendant
45:37
Speaker 1: has failed to establish other elements necessary to find a
45:40
Speaker 1: waiver of attorney-client privilege. Defendant repeatedly refers to routine litigation actions,
45:46
Speaker 1: such as the filing of in-court affidavits, as a basis
45:50
Speaker 1: for finding some kind of waiver privilege. See Motion to
45:53
Speaker 1: Compel at 16. But it's obvious that such actions do
45:57
Speaker 1: not waive attorney-client protection. Litigation requires some limited communication to
46:03
Speaker 1: third parties, including the court and opposing counsel, of information
46:07
Speaker 1: learned in the course of the attorney-client relationship. Therefore, Florida
46:12
Speaker 1: law recognizes an absolute privilege to protect attorney statements made
46:17
Speaker 1: in communications that are preliminary or proposed judicial proceeding or
46:22
Speaker 1: in the institution of or during the course and as
46:25
Speaker 1: part of a judicial proceeding. Florida State 90.502, Section 2.
46:33
Speaker 1: See also McCullough v. Kubiak, 158, Southern 3rd District, 739, 740,
46:39
Speaker 1: Florida 4th, DCA, 2015. A waiver of the attorney-client privilege
46:44
Speaker 1: occurs only if the client voluntarily discloses in court the
46:48
Speaker 1: substance of a communication with her attorney. CEG, DELUP v. State, 440,
46:53
Speaker 1: Southern 2nd District, 1242, 1247, Florida 1983, criminal defendant sought
47:01
Speaker 1: to use in-court favorably testimony in his investigator while blocking
47:06
Speaker 1: inquiry into other testimony. No waiver occurs when the client
47:10
Speaker 1: merely discloses facts which were part of the communication with
47:13
Speaker 1: the client's attorney. See Coon v. State 463, Southern 2nd
47:16
Speaker 1: District 201, 203, and 04, Florida 1985. See also Taylor v.
47:19
Speaker 1: State 855, Southern 2nd District 26N. 29, Florida, 2003. Thus, the
47:31
Speaker 1: privilege attaches to the communication with counsel, not to the
47:36
Speaker 1: underlying facts. Brookings v. State, 495, Southern 2nd District, 135, 139, Florida, 1986.
47:39
Speaker 1: See also Lynch v. State, 2nd Southern, 3rd District, 47, 66, Florida, 2008.
47:52
Speaker 1: As a result, allegations that Roberts disclosed to third parties
47:56
Speaker 1: the same facts that she may have related to Cassell
47:58
Speaker 1: and Edwards without any evidence that she disclosed the substance
48:02
Speaker 1: of her confidential consultation with Edwards and Cassell cannot overcome
48:07
Speaker 1: her privilege. To hold otherwise would eviscerate the attorney-client privilege.
48:12
Speaker 1: Such a ruling would mean that every time an attorney
48:15
Speaker 1: filed a declaration by his client, that contain the factual
48:18
Speaker 1: basis for the client's claim, the opposing party would have
48:22
Speaker 1: the right to examine all privilege communications. Defendant has not
48:27
Speaker 1: cited any authority, either in Florida or elsewhere, to support
48:31
Speaker 1: this extreme assertion that Ms. Roberts waived her privilege simply
48:35
Speaker 1: by allowing an affidavit to be filed in a court proceeding.
48:39
Speaker 1: Defendant also claims Cassell, at his deposition in the Dershowitz case,
48:44
Speaker 1: waived attorney-client privilege by discussing... factual information related to his
48:48
Speaker 1: investigation of Ms. Roberts' allegations, for example, flight log information.
48:53
Speaker 1: Cassell's deposition testimony did not constitute a waiver of Ms.
48:57
Speaker 1: Roberts' attorney-client privilege. Indeed, Ms. Roberts' own separate attorney, undersigned counsel, Ms. McCauley,
49:04
Speaker 1: from the law firm of Boyd, Schiller & Flexner, raised
49:07
Speaker 1: a standing objection to Cassell answering any questions that would
49:10
Speaker 1: require divulging any attorney-client communication. McCauley Declaration Example 14 deposition
49:18
Speaker 1: excerpt of Paul Cassell volume 1, dated October 16, 2015,
49:23
Speaker 1: at 3924. Virginia Roberts does not waive her attorney-client privilege
49:28
Speaker 1: with her lawyers, and they are not entitled to testify
49:31
Speaker 1: as to the information that she intended to be confidential
49:35
Speaker 1: that she communicated to her lawyers. Defendant also argues that
49:39
Speaker 1: that because Cassell said at some unspecified point in his
49:43
Speaker 1: deposition that he knew some unidentified information about Ms. Roberts,
49:47
Speaker 1: he must have been revealing attorney-client communication. Motion to compel
49:52
Speaker 1: at 17. Of course the information Cassell and Edwards knew
49:56
Speaker 1: about Ms. Roberts was a direct result of her attorney-client
49:59
Speaker 1: communications with them, but Cassell knew a vast amount of
50:02
Speaker 1: information about Ms. Roberts from the factual record in the case.
50:06
Speaker 1: such as the flight logs demonstrating flights that she took
50:09
Speaker 1: with Epstein and Defendant on Epstein's jet, and Defendant's logic
50:14
Speaker 1: is simply incorrect. Alright folks, we're going to wrap up
50:17
Speaker 1: right there, and in the next episode, talking about this topic,
50:21
Speaker 1: we'll pick up where we left off. All of the
50:23
Speaker 1: information that goes with this episode can be found in
50:27
Speaker 1: the description box. What's up everyone, and welcome back to
50:30
Speaker 1: the Epstein Chronicles. Yesterday, I uploaded the Maxwell motion for
50:36
Speaker 1: 37B and C sanctions. And it seems like there was
50:39
Speaker 1: a bit of an issue on the end of Spreaker
50:43
Speaker 1: yesterday with the uploading process. And it looks like some
50:46
Speaker 1: of you didn't receive those updates. So what I'm going
50:49
Speaker 1: to do is later on today, after we do today's slate,
50:52
Speaker 1: I'll re-upload those episodes. That way, those of you who
50:56
Speaker 1: didn't get them can have the access to them. That way,
50:59
Speaker 1: you're all up to date on these core documents. Now,
51:02
Speaker 1: I don't know what the hell was going on yesterday
51:04
Speaker 1: with Spreaker, but in the morning it was all goofy.
51:07
Speaker 1: So either way, I'll get those re-uploaded today. And considering
51:11
Speaker 1: it's the weekend, it's not like it's going to take
51:13
Speaker 1: away from anything more meaningful that we were going to
51:16
Speaker 1: talk about. So now that we got that little bit
51:19
Speaker 1: of housekeeping out of the way, why don't we dive
51:21
Speaker 1: right back in to the Ghislaine Maxwell unredacted court documents
51:26
Speaker 1: and her attempt to get access to attorney-client work privilege
51:30
Speaker 1: between Virginia and her lawyers. E. Ms. Roberts will not
51:35
Speaker 1: seek to use confidential attorney-client communications interaction here. For all
51:40
Speaker 1: the reasons just explained, Ms. Roberts has not waived her
51:43
Speaker 1: attorney-client privilege through events that occurred in the Dershowitz case.
51:47
Speaker 1: But one additional point bears emphasis. Defendant attempts to argue
51:52
Speaker 1: that the trial in this case will somehow be unfair
51:55
Speaker 1: if she does not receive access to confidential attorney-client communications
52:00
Speaker 1: that Ms. Roberts had with her lawyers earlier. motion to
52:03
Speaker 1: compel at 20 and 21. But regardless of what may
52:07
Speaker 1: or may not have been at issue in the Dershowitz case,
52:10
Speaker 1: confidential communications will not be at issue here. For example,
52:14
Speaker 1: defendant writes that it would be prejudicial for Ms. Roberts
52:18
Speaker 1: to be able to support her claim, in this case,
52:21
Speaker 1: that she is not a liar using her attorney's testimony.
52:24
Speaker 1: To be clear, Ms. Roberts has no intention of calling,
52:27
Speaker 1: for example, Cassell and Edwards to testify at trial in
52:31
Speaker 1: an attempt to support her claims. Thus, this will not
52:34
Speaker 1: be a case where it will be misleading to the
52:36
Speaker 1: court or any jury to hear testimony from Ms. Roberts'
52:39
Speaker 1: counsel about the factual basis, work product, and thought process
52:44
Speaker 1: on which they relied on in making the allegations in
52:47
Speaker 1: the joinder motion. Motion to compel at 22. For the
52:52
Speaker 1: simple reason that Ms. Roberts' counsel will not be witnesses
52:55
Speaker 1: in this case, nor will Ms. Roberts be presenting a
52:58
Speaker 1: state-of-mind defense that might require a more extensive inquiry into
53:02
Speaker 1: into attorney-client communications. See City of Erie, 546, F. 3D, 222, 229,
53:10
Speaker 1: 2nd Circuit, 2008. of good faith or state-of-mind issues as
53:15
Speaker 1: a reason for not finding at-issue waiver of privilege. Nomera
53:19
Speaker 1: Asset Capital Corporation v. Cadwallader, Wickersham & Taft, LLP, 62, AD, 3D, 581, 582, 880,
53:29
Speaker 1: NYS 2D 617-618-620, New York Appeals Division, 2009. Finding no
53:37
Speaker 1: waiver where plaintiff disavowed any intention to use confidential attorney-client communications,
53:43
Speaker 1: relevance alone insufficient to put privilege materials at issue, because
53:47
Speaker 1: if that were the case, a privilege would have had
53:50
Speaker 1: little effect. To be sure, at trial, Ms. Roberts will
53:53
Speaker 1: present factual testimony supporting her version of events, just as,
53:58
Speaker 1: no doubt, defendant will try to present testimony supporting her version.
54:02
Speaker 1: But such testimony from both sides does not create any
54:06
Speaker 1: waiver of attorney-client privilege. Instead, such testimony is simply the
54:10
Speaker 1: presentation of competing facts from which the jury can decide
54:14
Speaker 1: who is telling the truth. None of this creates any
54:17
Speaker 1: need for defendant to force Ms. Roberts to reveal confidential communications. Ms.
54:23
Speaker 1: Roberts did not waive her attorney-client privilege by denying fabricated
54:27
Speaker 1: evidence during her depositions. Defendant spends significant time arguing that Ms.
54:32
Speaker 1: Roberts' answers to several deposition questions about the absence of
54:36
Speaker 1: any communications from Cassell and Edwards that she provide false
54:39
Speaker 1: information constituted a waiver of attorney-client privilege. Motion to compel
54:44
Speaker 1: at 11. Arguing that never answered to the question, has
54:48
Speaker 1: Brad Edwards ever pressured you or encouraged you in any
54:52
Speaker 1: way or under any circumstances at any time to provide
54:56
Speaker 1: false information about Jeffrey Epstein? constituted a waiver of attorney-client privilege.
55:01
Speaker 1: While the arguments above are sufficient to dispose of this claim,
55:05
Speaker 1: it is worth emphasizing several additional points about this specific testimony. First,
55:11
Speaker 1: disclosing the absence of communication is not the same as
55:14
Speaker 1: exposing any communication. It is a fundamental requirement of a
55:18
Speaker 1: waiver argument that a. 502 Extending Privilege to a Communication
55:28
Speaker 1: between Lawyer and Client, not the Absence of Such Communication. See,
55:33
Speaker 1: Montanez v. Public Supermarket, Inc. 135, SO. 3D 510, 512-13, Florida
55:41
Speaker 1: District Court of Appeals, 2014, rejecting argument that client waived
55:46
Speaker 1: her attorney-client privilege by stating that an interrogatory answer was
55:50
Speaker 1: not her answer because this did not disclose the substance
55:54
Speaker 1: of of her communications with her attorney, C.F. Mitchell v.
55:58
Speaker 1: Superior Court, 37, California, 3D, 591, 602, 691, P. 2D, 642, 647, California, 1984.
56:09
Speaker 1: Relevant case law makes it clear that mere disclosure of
56:13
Speaker 1: the fact that a communication between client and attorney had
56:16
Speaker 1: occurred does not amount to disclosure of the specific content
56:21
Speaker 1: of that communication and... As such, does not necessarily constitute
56:26
Speaker 1: a waiver of the privilege. Second, the questions highlighted by
56:29
Speaker 1: the defendant asked Ms. Roberts whether she had ever communicated
56:33
Speaker 1: with her attorneys, Cassell and Edwards, for purposes of committing
56:37
Speaker 1: a crime or fraud. See motion to compel at 11.
56:40
Speaker 1: If such a communication involving perjury had existed, it would
56:44
Speaker 1: not have been covered by the attorney-client privilege in the
56:47
Speaker 1: first instance because it would have involved an ongoing crime
56:50
Speaker 1: or fraud. See Florida State. Laws at 90.5024. There is
56:56
Speaker 1: no lawyer-client privilege under this section when the services of
56:59
Speaker 1: the lawyer were sought or obtained to enable or aid
57:02
Speaker 1: anyone to commit or plan to commit what the client
57:05
Speaker 1: knew was a crime or a fraud. Answering those questions
57:09
Speaker 1: by denying the existence of a crime or fraud accordingly
57:12
Speaker 1: did not constitute waiver of confidentiality over any otherwise protected communication. Indeed,
57:19
Speaker 1: Any other conclusion would essentially abolish the attorney-client privilege. A
57:23
Speaker 1: party could simply accuse the opposing side of fabricating evidence,
57:27
Speaker 1: and when the accusation was denied, argue that attorney-client privilege
57:31
Speaker 1: had been waived. This is not the law. Finally, it's
57:36
Speaker 1: important to note that throughout her deposition, Ms. Roberts' attorney
57:39
Speaker 1: strenuously objected to any effort by Dershowitz to obtain attorney-client information.
57:45
Speaker 1: See Macaulay Declaration, Exhibit 11, composite exhibit of deposition excerpts
57:50
Speaker 1: from the deposition of Virginia Roberts. Clearly, at her deposition, Ms.
57:55
Speaker 1: Roberts did not voluntarily waive any attorney-client privilege that she held.
58:01
Speaker 1: Section 3. Edwards and Cassell have not waived work product
58:05
Speaker 1: protection and Maxwell has not demonstrated need to penetrate the protection. A.
58:10
Speaker 1: Work product protection has not been waived. For many of
58:13
Speaker 1: the same reasons that Ms. Roberts has not waived her
58:16
Speaker 1: attorney-client privilege, the work product protection has not been waived.
58:21
Speaker 1: Fed R. Evidence 502's protection against waiver applies not only
58:25
Speaker 1: to the attorney-client privilege, but also to the work product doctrine.
58:29
Speaker 1: On the facts of this case, Rule 502 thus extends
58:32
Speaker 1: all work product protections that exist under the law of
58:35
Speaker 1: the state where the disclosure occurred. Fed R.. R Evidence 502C, i.e.
58:42
Speaker 1: Florida law, as well as the protection that exists under
58:45
Speaker 1: federal law, Fed R Evidence 502C1. Florida law provides that
58:50
Speaker 1: work product protections extend to the documents and tangible things
58:54
Speaker 1: otherwise discoverable if a party prepared those items in anticipation
58:59
Speaker 1: of litigation or for trial. Florida R.Civ P 1.280 B
59:05
Speaker 1: and 3. The rationale supporting the work product doctrine is
59:09
Speaker 1: that one part of you is not entitled to prepare
59:11
Speaker 1: his case through the investigative work product of his adversary
59:15
Speaker 1: where the same or similar information is available through ordinary
59:19
Speaker 1: investigative techniques and discovery procedures. Universal City Development Partners, LTD vs. Papillo, 54, SO. 3D 612-614,
59:30
Speaker 1: Florida 5th, DCA 2011. The work product of the litigant,
59:35
Speaker 1: his attorney or agent, cannot be examined absent rare and
59:38
Speaker 1: exceptional circumstances. Surf Drugs Incorporated vs. Vermette 236, Southern 2nd
59:45
Speaker 1: District 108-112, Florida 1970. In Florida, as elsewhere... A party
59:51
Speaker 1: can make a limited waiver of its work product privilege.
59:54
Speaker 1: Paradise Divers Incorporated v. UPMAL 943, Southern 2nd District 812-814
1:00:01
Speaker 1: Florida District Court of Appeals 2006. A waiver by disclosure
1:00:06
Speaker 1: only includes other unrevealed communications to the extent that they
1:00:10
Speaker 1: are relevant to the communication already disclosed. citing Eastern Airlines
1:00:15
Speaker 1: Incorporated v. Gellert, 431 Southern 2nd District, 329-332, Florida, 3rd DCA, 1983.
1:00:24
Speaker 1: Waiver by disclosure does not mean that the voluntary disclosure
1:00:28
Speaker 1: of confidential information effectively waives the privilege as to all
1:00:32
Speaker 1: conversations or the whole breadth of discussion which may have
1:00:36
Speaker 1: taken place. Procaci v. Siteland, 497, Southern 2nd District 969,
1:00:41
Speaker 1: 969 and 70, Florida District Court of Appeals, 1986, citing
1:00:43
Speaker 1: Goldman Sachs, Company v. Blondes, 412, F.S.U.P.P., 286, 288, N.D. 3, 1976. Instead,
1:00:44
Speaker 1: waiver by disclosure is confined to that specific subject during
1:00:47
Speaker 1: that particular conversation. Prakachi, 497, Southern 2nd District at 970,
1:01:07
Speaker 1: quoting Paranon v. Bergen Brunswick Corporation 77 FRD 455 461
1:01:14
Speaker 1: ND CAL 1978. As with her attorney-client privilege argument, defendant
1:01:21
Speaker 1: has not even cited Florida law on waiver or work
1:01:24
Speaker 1: product protection, much less explained how she meets its demanding requirements. Moreover,
1:01:29
Speaker 1: the illustration she provides do not prove any general waiver
1:01:33
Speaker 1: of work product protection. For example, defendant relies on the
1:01:37
Speaker 1: claim that Cassell and Edwards have waived work product protection
1:01:41
Speaker 1: by disclosing a transcript of a portion of a 2011
1:01:45
Speaker 1: telephone interview with Ms. Roberts by attorneys Jack Scarola and
1:01:49
Speaker 1: Brad Edwards. But that recorded interview was never confidential communication
1:01:54
Speaker 1: between Ms. Roberts and the lawyers, but rather, as the
1:01:58
Speaker 1: transcript of the call itself makes clear, a communication that
1:02:01
Speaker 1: could be presented to any jury that might ultimately have
1:02:05
Speaker 1: to hear these facts. McCauley Declaration, Example 15 at 1,
1:02:10
Speaker 1: transcript of Scarola Edwards' interview on April 7, 2011. In
1:02:15
Speaker 1: other words, the recorded call was simply the functional equivalent
1:02:19
Speaker 1: of an affidavit, and affidavits are routinely disclosed with waiving
1:02:23
Speaker 1: work product protections under the law of Florida and elsewhere.
1:02:27
Speaker 1: Defendant also argues that Cassell and Edwards waived work product
1:02:31
Speaker 1: protection by filing a summary judgment motion in the Dershowitz case,
1:02:35
Speaker 1: which contained supporting exhibits, e.g. flight logs, sworn testimony by
1:02:40
Speaker 1: third-party witnesses, and other evidence. Motion to compel at 16,
1:02:45
Speaker 1: but providing information in support of a summary judgment motion
1:02:49
Speaker 1: in a routine step that attorneys take every day. While
1:02:52
Speaker 1: the materials produced are obviously not subject to work product protection,
1:02:56
Speaker 1: other materials and communications do somehow become subject to discovery.
1:03:01
Speaker 1: Paradise Divers Incorporated, 943- Southern 2nd District at 814. B.
1:03:07
Speaker 1: Defendant has not proven need to penetrate work product protections.
1:03:12
Speaker 1: Defendant's statement on work product protection also simply assumes that
1:03:16
Speaker 1: it is the same as attorney-client privilege and can be
1:03:19
Speaker 1: waived under an at-issue theory. But the at-issue legal theory
1:03:23
Speaker 1: defendant relies on to argue incorrectly that attorney-client privilege has
1:03:28
Speaker 1: been waived applies only to that privilege. The work product
1:03:31
Speaker 1: doctrine is is quite distinct from attorney-client privilege, and application
1:03:36
Speaker 1: of the privileges and exceptions to them differ. See West
1:03:39
Speaker 1: Bend Mutual Insurance Company v. Higgins 9, Southern 3rd District,
1:03:44
Speaker 1: 655-656 Florida 5th, DCA 2009, Genovese v. Provident Life, and
1:03:47
Speaker 1: Accident Insurance Company 74, Southern 3rd District 1064-1068 Florida 2011.
1:03:50
Speaker 1: As revised on denial, of Regulation 2011. The function of
1:04:04
Speaker 1: the work product doctrine is to protect counsel's mental impressions.
1:04:08
Speaker 1: West Bend Mutual, 9th, Southern 3rd District at 656. To
1:04:12
Speaker 1: pierce the privilege, defendant must show that the substantial equivalent
1:04:16
Speaker 1: of the material cannot be obtained by other means. Southern
1:04:19
Speaker 1: Bell Telephone and Telephone Company versus Deason, 632 Southern 2nd District, 1377-1385,
1:04:24
Speaker 1: Florida 1994. defendant has not even identified any specific work
1:04:33
Speaker 1: product she claims to need, much less shown why she
1:04:37
Speaker 1: cannot get the underlying information from other sources. Under the
1:04:41
Speaker 1: law of Florida and elsewhere, to establish need, a party
1:04:45
Speaker 1: must present testimony or evidence demonstrating the material requested is
1:04:49
Speaker 1: critical to the theory of the requester's case or to
1:04:52
Speaker 1: some significant aspect of the case. Zirkelbach Construction Incorporated, versus
1:04:58
Speaker 1: Rajon 93, Southern 3rd District, 1124-1130, Florida 2D, DCA, 2012.
1:05:07
Speaker 1: Well established in Florida is the principle that the unsworn
1:05:10
Speaker 1: analysis of a party's attorney and or bare assertion of
1:05:14
Speaker 1: need and undue hardship to obtain the substantial equivalent is
1:05:18
Speaker 1: insufficient to satisfy this showing. Butler v. Harder 152, Southern
1:05:21
Speaker 1: 3rd District, 705-712, Florida 2D, 1st DCA, 2014. See Procter
1:05:30
Speaker 1: & Gamble Company v. Swilley, 462, Southern 2nd District, 1188, 1194, Florida,
1:05:32
Speaker 1: 1st DCA, 1985. State v. TA, 528, Southern 2nd District, 974, 975, Florida,
1:05:34
Speaker 1: 2nd DCA, 1988. Representations by counsel not made under oath
1:05:37
Speaker 1: and not subject to cross-examination absent a stipulation are not evidenced. Further,
1:05:56
Speaker 1: Florida courts have held that the showing of need encompasses
1:05:59
Speaker 1: a showing of diligence by the party seeking discovery of
1:06:03
Speaker 1: another party's work product. Butler v. Harder, 152, Southern, 3rd District, 705, 712, Florida,
1:06:08
Speaker 1: 1st DCA, 2014. See also, CSX Transportation Incorporated v. Carpenter, 725,
1:06:10
Speaker 1: Southern 2nd District, 434, 435, Florida, 2nd DCA, 1999. quashing
1:06:26
Speaker 1: order granting motion to compel discovery because the record did
1:06:29
Speaker 1: not contain affidavits, supporting plaintiff's argument that it was unable
1:06:33
Speaker 1: to obtain the substantially equivalent information by other means without
1:06:37
Speaker 1: undue hardship. Falco v. North Shore Labs Corporation, 866 Southern
1:06:43
Speaker 1: 2nd District, 1255-1257, Florida 1st, DCA 2004. Holding that need
1:06:50
Speaker 1: and undue hardship must be demonstrated by affidavit or sworn testimony.
1:06:56
Speaker 1: Broward Hospital District v. Button, 592, S.O. 2nd District, 367, 368, Florida,
1:07:04
Speaker 1: 4th DCA, 1992. The unsworn assertions of plaintiff's counsel were
1:07:09
Speaker 1: insufficient to constitute a showing of need and undue hardship.
1:07:13
Speaker 1: Called into doubt on other grounds as stated in Columbia
1:07:16
Speaker 1: Hospital Corp. of South Broward v. Fane, 16, Southern 3rd District, 236, Florida,
1:07:22
Speaker 1: 4th DCA, 2009. Here, defendant has ample information from which
1:07:28
Speaker 1: she can present her case. At the core of this
1:07:30
Speaker 1: case is whether Ms. Roberts lied when she said that
1:07:33
Speaker 1: the defendant recruited her to be sexually abused by Jeffrey Epstein.
1:07:37
Speaker 1: Defendant can, of course, testify to her interactions with Ms. Roberts,
1:07:42
Speaker 1: as well as call witnesses regarding the circumstances of those interactions.
1:07:46
Speaker 1: Defendant can also get information from her close friend Epstein
1:07:51
Speaker 1: about the circumstances of the interactions. Defendant and Epstein are
1:07:55
Speaker 1: not only good friends, but they have a common interest
1:07:57
Speaker 1: agreement that facilitates transfer of information between the two of them. Finally,
1:08:02
Speaker 1: to make her showing that she is unable to obtain
1:08:05
Speaker 1: equivalent information from other sources, Defendant would have to explain
1:08:08
Speaker 1: in detail what other steps she has taken to secure
1:08:11
Speaker 1: information from other sources, including not only Epstein but other
1:08:16
Speaker 1: witnesses present at Epstein's mansion. Having failed to do any
1:08:20
Speaker 1: of this, defendant has not made a sufficient showing to
1:08:23
Speaker 1: obtain work product information. 4. Communications with attorney Jack Scarola
1:08:32
Speaker 1: are covered by a joint defense agreement and are thus
1:08:35
Speaker 1: protected by attorney-client and work product protections. As a tag-along
1:08:40
Speaker 1: argument at the end of her motion, defendant argues that Ms.
1:08:43
Speaker 1: Roberts has not established the existence of a common interest
1:08:46
Speaker 1: or joint defense agreement that embraces Jack Scarola, the attorney
1:08:50
Speaker 1: for Cassell and Edwards, in the Dershowitz litigation, motion to
1:08:54
Speaker 1: compel at 23 and 24. Disclosure of the agreement involved
1:08:58
Speaker 1: notice to the party's of the agreement. Now that appropriate
1:09:02
Speaker 1: notice has been provided, the agreement can be and has
1:09:05
Speaker 1: been disclosed. See Macaulay Declaration, Example 16, Common Interest Agreement.
1:09:11
Speaker 1: In view of the existence of the valid agreement, it
1:09:13
Speaker 1: is clear that the reference communications involving Scarola are protected.
1:09:18
Speaker 1: See Roberts v. Maxwell, No. 15, Civ 7433, RWS, 2016, WL1756918,
1:09:27
Speaker 1: at 6, SDNY, May 2, 2019. Noting common interest agreement protection. Conclusion,
1:09:36
Speaker 1: defendant's motion to compel should be denied in its entirety.
1:09:40
Speaker 1: This was dated June 1, 2016, and it was signed
1:09:44
Speaker 1: by Sigrid McCauley and the crew over at Boys and Schiller.
1:09:48
Speaker 1: Alright folks, that's going to do it for this one
1:09:50
Speaker 1: and for this document as a whole. But have no fear,
1:09:54
Speaker 1: we'll be diving into the next one very shortly. All
1:09:57
Speaker 1: the information that goes with this episode can be found
1:10:00
Speaker 1: in the description box.