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

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

• 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,
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  Speaker 1: and we're going to begin our look at the response
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  Speaker 1: to the motion to compel attorney-client communications and attorney work
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  Speaker 1: product materials. Case number 15-CV-07433-RWS. Virginia Roberts, Plaintiff. Ghislaine Maxwell,
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  Speaker 1: the Defendant. Plaintiff Virginia Roberts, by and through her undersigned counsel,
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  Speaker 1: hereby files this response to defendant's motion to compel all
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  Speaker 1: attorney-client communications and attorney work product placed at issue by
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  Speaker 1: plaintiff and her attorneys, DE-164. The motion should be denied
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  Speaker 1: in its entirety. Introduction. The defendant argues Ms. Roberts and
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  Speaker 1: two of her attorneys, Cassell and Edwards, have somehow placed
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  Speaker 1: at issue her confidential attorney-client communications and, therefore, have made
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  Speaker 1: a sweeping waiver of attorney-client privilege in this case. Defendant, however,
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  Speaker 1: fails to cite the controlling law on this issue. Federal
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  Speaker 1: Rule of Evidence 502. Enacted in 2008, Rule 502 was
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  Speaker 1: designed to block exactly the kind of argument the defendant
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  Speaker 1: is making. Rule 502 provides the litigants are entitled to
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  Speaker 1: the most protective laws on attorney-client privilege, either state law,
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  Speaker 1: where the disclosure was made, or federal law. The alleged
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  Speaker 1: disclosures in this case were made in Florida and under
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  Speaker 1: Florida law did not constitute any waiver of attorney-client privilege. Indeed,
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  Speaker 1: defendant does not reveal to the court that the Florida
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  Speaker 1: judge who handled the case during which the alleged waivers occurred,
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  Speaker 1: the Dershowitz case, has already considered and rejected their entirety,
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  Speaker 1: the very argument that defendant is advancing here. In addition,
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  Speaker 1: None of the alleged disclosures were made by Ms. Roberts, who,
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  Speaker 1: as the holder of the privilege, is the only individual
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  Speaker 1: with authority to waive it. Moreover, none of the alleged
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  Speaker 1: disclosures concern the substance of confidential attorney-client communication, and finally Ms.
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  Speaker 1: Roberts will not be seeking to introduce or otherwise take
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  Speaker 1: advantage of any confidential attorney-client communications in this case. Accordingly,
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  Speaker 1: for these and other reasons, the court should deny the
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  Speaker 1: defendant's motion in its entirety. The factual background. The CVRA case.
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  Speaker 1: The facts relevant to this issue begin in 2008 when
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  Speaker 1: attorney Bradley J. Edwards, soon joined by co-counsel Professor Paul Cassell,
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  Speaker 1: filed a pro bono action in the Southern District of
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  Speaker 1: Florida under the Crime Victims Rights Act. Filed on behalf
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  Speaker 1: of Jane Doe No. 1 and later Jane Doe No. 2.
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  Speaker 1: The CVRA action alleged the federal government had failed to
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  Speaker 1: protect the rights of Jane Doe 1 and other similarly
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  Speaker 1: situated victims of sex offenses committed by Epstein. See Declaration
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  Speaker 1: of Sigrid McCauley at Exhibit 1, Complaint Filed in Jane
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  Speaker 1: Doe 1 v. United States, No. 08-CV-80736, Southern District of Florida,
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  Speaker 1: July 7, 2008. Jane Does 1 and 2 achieved many
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  Speaker 1: victories in that case, including a ruling that the CVRA
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  Speaker 1: rights of victims could apply before charges were filed. Doze
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  Speaker 1: 1 and 2 v. United States, 817, F.S.U.P.P., 2D, 1337,
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  Speaker 1: Southern District of Florida, 2011. That they had standing to
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  Speaker 1: challenge the non-prosecution agreement reached between the government, Epstein, Jane
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  Speaker 1: Doze 1 and 2, v. United States, 950, F.S.U.P.P., 2D, 1262,
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  Speaker 1: Southern District of Florida, 2013, and that plea negotiations were
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  Speaker 1: not protected from disclosure by any federal rule of evidence.
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  Speaker 1: Doze v. United States, 749 F. 3D, 1999, 11th Circuit, 2014.
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  Speaker 1: Congress also followed the developments in the case closely, recently
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  Speaker 1: amending the CVRA to ensure that the future crime victims
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  Speaker 1: receive notice of any non-prosecution agreement entered into by the government.
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  Speaker 1: See Pub L, 114, 22, Title I, Section 113A, C
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  Speaker 1: and I, May 29, 2015, 129, 240-241, adding U.S. Code
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  Speaker 1: 18 Section 3771-A-9 to give crime victims the right to
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  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
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  Speaker 1: Edwards filed a motion pursuant to Rule 21 for a
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  Speaker 1: joinder in the action on behalf of two additional victims,
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  Speaker 1: Jane Doe 3 and Jane Doe 4. Jane Doe 3,
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  Speaker 1: Virginia Roberts, subsequently decided to reveal her name. The joinder
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  Speaker 1: motion argued that Jane Doe's three and four should be
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  Speaker 1: allowed to join the two existing plaintiffs in the action
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  Speaker 1: because they had suffered the same violations of their rights
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  Speaker 1: under the CVRA. Macaulay Declaration Exhibit 2, Jane Doe's three
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  Speaker 1: and four joined her motion. To establish that they were
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  Speaker 1: victims of Epstein sex crimes withstanding to join the suit,
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  Speaker 1: Jane Doe's three and four alleged that they had suffered
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  Speaker 1: sexual abuse from Epstein. For example, Jane Doe's three alleged
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  Speaker 1: that she had been forced by Epstein to have sexual
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  Speaker 1: relations with various persons, including Alan Dershowitz, who had been
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  Speaker 1: one of Epstein's defense attorneys negotiating the non-prosecution deal and
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  Speaker 1: arranging to keep it secret from the victims. Macaulay Declaration
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  Speaker 1: Exhibit 2 at 4. Jane Doe 3 also alleged that
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  Speaker 1: defendant I.E. Glenn Maxwell had participated in the sexual abuse
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  Speaker 1: of Jane Doe No. 3. Alan Dershowitz also filed a
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  Speaker 1: motion to intervene in To contest the allegations, Jane Doe
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  Speaker 1: III filed a response to Dershowitz's intervention motion. Macaulay Declaration
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  Speaker 1: Exhibit 3, Response to Motion to Intervene. The response explained
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  Speaker 1: that the allegations against Dershowitz were relevant to at least
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  Speaker 1: eight separate issues in the CVRA case. ID at 1826.
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  Speaker 1: The response also explained some of the evidence supporting the
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  Speaker 1: allegations against Dershowitz, including... Sworn testimony from one of Epstein's
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  Speaker 1: household employees, Juan Alessi, that Dershowitz came pretty often to
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  Speaker 1: Epstein's Florida mansion and got massages while he was there.
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  Speaker 1: Sworn testimony from another of Epstein's household employees, Alfredo Rodriguez,
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  Speaker 1: that Dershowitz was present alone at the home of Epstein
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  Speaker 1: without his family in the presence of young girls. Invocations
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  Speaker 1: of the Fifth Amendment rights to remain silent by three
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  Speaker 1: of Epstein's identified co-conspirators, Sarah Kellan, Nadia Marcinkova, and Adriana Musinska.
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  Speaker 1: When asked questions about whether Dershowitz had been involved with
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  Speaker 1: massages by the young girls. Refusals by Jeffrey Epstein to
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  Speaker 1: discuss Dershowitz's involvement, but instead to invoke his Fifth Amendment right.
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  Speaker 1: Several months later, on April 7, 2015, the court, Mara J.,
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  Speaker 1: denied Jane Doe III and Jane Doe IV as joined
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  Speaker 1: or motion. Macaulay Declaration Exhibit 4. Order denying Jane Doe
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  Speaker 1: III's motion to join. With regard to the eight separate
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  Speaker 1: issues as to which the allegations against Dershowitz were relevant,
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  Speaker 1: the court addressed only the first, establishing victim status, and
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  Speaker 1: found that the factual details regarding with whom and where
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  Speaker 1: the Jane Does engaged in sexual activities are immaterial and
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  Speaker 1: impertinent to this central claim, i.e. they were known victims
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  Speaker 1: of Mr. Epstein and the government owed them CVRA duties,
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  Speaker 1: especially considering that these details involve non-parties who are not
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  Speaker 1: related to the respondent government, ID at 5. Accordingly, the
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  Speaker 1: court struck the factual details from the victim's pleading as
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  Speaker 1: unnecessary at the time. The court specifically recognized, however, that
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  Speaker 1: the details could be reasserted by the parties to the action, i.e.
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  Speaker 1: Jane Doe 1 and Jane Doe 2, if they could
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  Speaker 1: demonstrate a good faith basis for believing that such details
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  Speaker 1: are pertinent to a matter presented for the court's consideration,
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  Speaker 1: ID at 6. Following the court's ruling, additional litigation has
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  Speaker 1: proceeded in the CVRA case. The Dershowitz case, while the
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  Speaker 1: CVRA case was moving forward in the Southern District of
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  Speaker 1: Florida on behalf of Jane Doe's 1 and 2, separate
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  Speaker 1: litigation developed between the pro bono attorneys who had filed
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  Speaker 1: the lawsuit, Cassell and Edwards, and Dershowitz. After the filing
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  Speaker 1: of the joinder motion in the CVRA case, Dershowitz took
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  Speaker 1: to the airwaves and attacked not only Jane Doe 3,
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  Speaker 1: but also Cassell and Edwards. Typical of these attacks, one
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  Speaker 1: was leveled on CNN in which Dershowitz alleged if they,
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  Speaker 1: Cassell and Edwards, had just done an hour's worth of
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  Speaker 1: research and work, they would have seen she is lying
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  Speaker 1: through her teeth. They're prepared to lie, cheat, and steal.
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  Speaker 1: These are unethical lawyers. They can't be allowed to have
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  Speaker 1: a bar card to victimize more innocent people. Hala Gharani,
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  Speaker 1: CNN Live, January 5th, 2015. Cassell and Edwards then filed
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  Speaker 1: a state defamation action against Dershowitz in Broward County, Florida.
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  Speaker 1: See McCauley Declaration Exhibit 5. Complaint in Edwards and Cassell v. Dershowitz.
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  Speaker 1: The complaint alleged that Dershowitz had engaged in a massive
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  Speaker 1: public media assault on the reputation and character of Cassell
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  Speaker 1: and Edwards. Idea 4. Ms. Roberts was not a party
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  Speaker 1: to this defamation lawsuit. The Florida court rejects a waiver
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  Speaker 1: of attorney-client's privilege argument. As Cassell and Edwards, Florida defamation
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  Speaker 1: action move forward, Dershowitz, sought to make an argument that
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  Speaker 1: they had somehow waived their client, Ms. Roberts' attorney-client privilege.
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  Speaker 1: On September 8, 2015, Dershowitz filed a motion to compel
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  Speaker 1: Cassell and Edwards to produce documents and additional responses to interrogatories.
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  Speaker 1: Macaulay Declaration Exhibit 6, Motion to Compel. In his motion,
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  Speaker 1: Dershowitz argued that Cassell and Edwards have waived any privilege
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  Speaker 1: or protection that would otherwise attach to a responsive document.
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  Speaker 1: and information by bringing this defamation action, placing at issue
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  Speaker 1: the truthfulness of Jane Doe No. 3's allegations against Dershowitz.
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  Speaker 1: Idea 3 and 5. In his motion and reply, pleading
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  Speaker 1: Macaulay Declaration Exhibit 8. Reply in support of motion to compel.
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  Speaker 1: Dershowitz argued that Cassell and Edwards' actions throughout the case
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  Speaker 1: constituted a waiver of attorney-client privilege. Cassell and Edwards responded,
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  Speaker 1: arguing that Ms. Roberts was not a party of the
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  Speaker 1: defamation action and that she was the only person who
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  Speaker 1: could waiver privilege. McCauley Declaration, Exhibit 7, at 4 and 6.
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  Speaker 1: Response in opposition to the motion to compel. Cassell and
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  Speaker 1: Edwards also argued that there had been no waiver. because
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  Speaker 1: confidential attorney-client communications with Ms. Roberts were not an issue
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  Speaker 1: in the defamation's case. Cassell and Edwards also later filed
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  Speaker 1: a surreply, further elaborating on the argument that Ms. Roberts
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  Speaker 1: had not waived any attorney-client privilege by publicly discussing her
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  Speaker 1: sexual abuse by Epstein and his associates. McCauley Declaration Exhibit
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  Speaker 1: 9 Surreply in Support of Opposition to Motion to Compel
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  Speaker 1: Cassell and Edwards also explained, that communications with Ms. Roberts
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  Speaker 1: were protected not only beginning in March 2014, but even
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  Speaker 1: earlier than that date when Ms. Roberts understood that she
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  Speaker 1: was obtaining legal services from Cassell and Edwards. Following this
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  Speaker 1: extensive briefing on waiver issues, on December 8, 2015, the
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  Speaker 1: Florida court, Lynch J., ruled denying Dershowitz's argument that attorney-client
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  Speaker 1: privilege had been waived. McCauley Declaration, Exhibit 10. Order denying
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  Speaker 1: motion to compel. Specifically, the court denied the motion to
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  Speaker 1: compel explaining pre-March 2014 communications are protected by the work
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  Speaker 1: product privilege and the witness has not waived the communications
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  Speaker 1: that were protected by the attorney-client privilege. Also, there was
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  Speaker 1: no waiver by Casella and Edwards by filing the suit.
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  Speaker 1: All right, folks, we're going to wrap up with part
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  Speaker 1: one there, and in the next episode, we'll pick up
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  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
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  Speaker 1: up everyone and welcome back to the Epstein Chronicles. In
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  Speaker 1: this episode, we're picking right back up where we left
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  Speaker 1: off with the attempt by Ghislaine Maxwell to get access
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  Speaker 1: to attorney-client work privilege. Ms. Roberts' Deposition in the Defamation
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  Speaker 1: Case As the defamation action moved forward, Dershowitz subpoenaed Ms.
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  Speaker 1: Roberts to a deposition, Macaulay Declaration Exhibit 11, Composite Exhibit
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  Speaker 1: of Excerpts from Transcript of deposition of Ms. Roberts. During
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  Speaker 1: the deposition, held in Fort Lauderdale, Florida, Ms. Roberts was
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  Speaker 1: represented by the undersigned legal counsel who asserted objections to
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  Speaker 1: revealing attorney-client information where the questions called for revealing confidential
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  Speaker 1: attorney-client communications, CEG ID at 22 and 23, 131 and 32,
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  Speaker 1: 173 and 74, 183 and 208. During the deposition, Ms.
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  Speaker 1: Roberts specifically stated that I decide not to waive my
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  Speaker 1: attorney-client privilege at this time, idea 174. Ms. Roberts also
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  Speaker 1: denied that Cassell and Edwards had ever pressured her into
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  Speaker 1: identifying someone as being involved in her sexual abuse. The
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  Speaker 1: Settlement of the Defamation Case Ultimately, Cassell, Edwards, and Dershowitz
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  Speaker 1: agreed to settle their defamation case. That settlement included both
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  Speaker 1: public statement and confidential monetary payments. As part of the settlement,
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  Speaker 1: Cassell and Edwards withdrew their allegations against Dershowitz in the
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  Speaker 1: defamation case contained in the then-pending summary judgment motion. Macaulay Declaration,
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  Speaker 1: Exhibit 12 Notice of Withdrawal of Summary Judgment Motion As
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  Speaker 1: explained in the notice of withdrawal of this motion, the
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  Speaker 1: withdrawal of the reference filings is not intended to be
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  Speaker 1: and should not be construed as being an acknowledgment by
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  Speaker 1: Edwards and Cassell that the allegations made by Roberts were mistaken.
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  Speaker 1: Edwards and Cassell do acknowledge that the public filing in
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  Speaker 1: the Crimes Victim Rights Act case of their client's allegation
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  Speaker 1: against defendant Dershowitz became a major distraction from the merits
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  Speaker 1: of the well-founded Crime Victims Rights Act by causing delay and,
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  Speaker 1: as consequence, turned out to be a tactical mistake. All
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  Speaker 1: these actions settling the Florida defamation case took place in Florida.
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  Speaker 1: Legal Standards for Waiver A. Federal Rule of Evidence 502
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  Speaker 1: controls on the issue of waiver. Defendant asks this court
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  Speaker 1: to find that Ms. Roberts has somehow waived her attorney-client
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  Speaker 1: privilege regarding various communications in this case. This is no
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  Speaker 1: small step. The attorney-client privilege is one of the oldest
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  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
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  Speaker 1: to encourage full and frank communication between attorneys and their
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  Speaker 1: clients and thereby promote broader public interest in the observance
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  Speaker 1: of law and the administration of justice. 524 U.S. at
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  Speaker 1: 403 internal quotations omitted. In setting out the legal standards
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  Speaker 1: pertaining to waiving the attorney-client privilege, defendant fails to cite
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  Speaker 1: the controlling and protective law on the issue. In a
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  Speaker 1: federal case, issues of alleged waiver of attorney-client privilege must
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  Speaker 1: be resolved under the new standards in Federal Rule of
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  Speaker 1: Evidence 502. In 2008, Congress enacted Federal Rule of Evidence 502,
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  Speaker 1: which is entitled Attorney-Client Privilege and Work Product Limitations on Waiver.
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  Speaker 1: New Rule 502 places a number of protections in place
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  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.
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  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,
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  Speaker 1: by demonstrating that no waiver exists under the state law
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  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
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  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
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  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,
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  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
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  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.