WHILE I WAS TRYING THE yacht assault case, Epstein, through his lawyers Link & Rockenbach, was busy taking last-minute trial depositions in my personal case.
Jack Scarola sent me the transcript of the deposition of former RRA attorney Bill Berger, during which Bill was asked questions that told me Scott Link had in his possession certain emails that were attorney-client privileged and never should have been turned over to Epstein. I told Jack that Epstein’s having gotten hold of them was not just a hunch, it was a fact. Jack, not totally convinced, said, “We’ll see.” Because of this transcript, despite being overwhelmed with the other trial, I paid close attention to the exhibit lists that were being exchanged in anticipation of the Epstein trial.
On March 2, 2018, just before the trial was set to begin, Epstein’s counsel filed a pleading that included at least forty-nine privileged emails spanning more than one hundred pages. The emails had never been lawfully provided to Epstein or his counsel. They were emails where I was discussing my client with other lawyers from my firm in 2009. The emails included information on the strengths and weaknesses of our cases as well as our legal and tactical strategy—the exact type of information that would give an adversary an unfair advantage, and which an adversary is prohibited from obtaining. Jack was shocked that Epstein had them and that the privilege had been violated. I myself was not surprised. I had told everyone years before that this was going to happen. Epstein always got what he wanted, especially that to which he was not entitled to have.
I knew from experience that laws and court rules never stood in the way of Jeffrey Epstein. His manipulation permeated everything he did. The nature of the emails forced us to do something about it, though, because the attorney-client privilege is sacrosanct. It is a privilege belonging to the client that can’t be waived by the attorney. When the stolen emails were written back in 2009, I was the attorney working on behalf of Courtney, Lynn, and Marissa. Now, I was the protector of them and their private information. My being the client in this other case did not make it okay for protected information to be disseminated to Epstein.
We raised the violation with Judge Hafele that same day, which happened to be the Friday before trial was set to begin. The court ultimately ruled that these newly listed privileged exhibits could not be used at trial and would not form the basis of a last-minute continuance—a delay we all knew was one of Epstein’s objectives. True to form, Epstein had his lawyers file a last-minute emergency appeal of the judge’s ruling protecting the documents. My appellate lawyers at Burlington & Rockenbach were confident that the Fourth District Court of Appeal would not take the appeal from Epstein’s lawyers at Link & Rockenbach. I was not so sure.
About three hours after we had left the courtroom and Epstein had filed his appeal, the appellate court ruled that his appeal had been accepted. Epstein got his emergency continuance yet again. Everyone on our side was mad as hell and trying to call me to give me some crazy explanation as to why this happened. I was at the movies with my kids and my phone was going off like a slot machine in Vegas. I silenced it. By the time I got out, I had more than twenty messages about how surprising it was that the Fourth had taken Epstein’s emergency appeal. I wasn’t as upset as they were, simply because I was used to Epstein getting his way and had always believed this was going to happen. We did everything we could and eventually we would get our day, but until then, if a delay of this kind could be won, Epstein would win it.
I looked at the glass as half-full. As much as I wanted the trial and as prepared as we were, this was March and we were overloaded with work trying to secure our client’s judgment in the yacht case. This delay allowed both sides to figure out exactly how Epstein had come into possession of privileged materials he had never been given. It didn’t take me more than a second to know how this had happened. From the moment I read the questions in the deposition of Bill Berger, before the leaked emails had even been filed, I’d told Jack that Epstein had obtained them from Fowler White, his former law firm in Miami.
On March 7, just days after the initial filing of the emails as trial exhibits, my suspicions were confirmed when Scott Link delivered a flash drive to Jack “duplicating the disc [he] located in Fowler White’s files.” The thousands of emails on that disc included an internal stamp indicating that the files had been last modified on December 8, 2010—the precise day that Special Master Carney’s copy of the RRA emails was delivered over our strong objection to Fowler White, with an order by bankruptcy Judge Ray to make a hard copy of the privileged emails and “not retain any copies.”
As we had forewarned everyone in 2010, allowing Fowler White to have the documents was truly allowing a fox to guard the henhouse. And now, here we were in 2018 learning that the fox had eaten the hen. We filed a legal motion to hold Fowler White in contempt in federal court in front of Judge Raymond Ray, who had presided over the entire RRA bankruptcy matter and who had signed an order on November 30, 2010, specifically directing that:
The law firm of Fowler White Burnett, P.A., will print a hard copy of all of the documents contained on the discs with Bates numbers added, and will provide a set of copied, stamped documents to the Special Master and an identical set to Farmer [my law firm], who will use same to create its privilege log.… Fowler White will not retain any copies of the documents contained on the discs provided to it, nor shall any images or copies of said documents be retained in the memory of Fowler White’s copiers [emphasis added]. Should it be determined that Fowler White or Epstein retained images or copies of the subject documents on its computer or otherwise, the Court retains jurisdiction to award sanctions in favor of Farmer, Brad Edwards, or his client.
Fowler White had the disc the order directed them not to have. And now, Epstein had it.
Outside the courtroom all of the lawyers were talking about the fact that the violation was obvious. Judge Ray let us take the sworn deposition of a Fowler White representative to get to the bottom of how the CD of emails came into Epstein’s possession. That representative testified truthfully that the disc now in Scott Link’s possession had been located in the bottom of one of the Fowler White boxes and, as such, had been transferred to Scott Link when he took over representation of Epstein. The representative confirmed that the disc had been last modified on December 8, 2010, a date on which the documents were in the possession only of Fowler White. While he personally was unsure of what happened to the disc afterward, he was sure there was an inventory in 2014 that had listed the disc as being in Fowler White’s possession before all of the boxes had been sent to storage. This testimony established the Fowler White breach.
We went to a final hearing and, from an outsider’s point of view, there were very few disagreements between the parties. Epstein now had in his possession a copy of the exact materials that Judge Ray’s 2010 order expressly precluded him from having. Despite knowing that we should win, I never got the feeling that Judge Ray saw it that way. As sad as it was, it came as no surprise to me when Judge Ray found a way to rule against us. Epstein called me the day the ruling came out to laugh at Judge Ray’s ruling. “It’s a funny ruling, isn’t it, Brad. My lawyers kept the disc and still got a ruling in their favor. I wonder how that happened,” he said, tongue in cheek. I wasn’t going to let him get to me.
This already extraordinarily complicated case, where everything had been determined and yet nothing was certain, was set for a monthlong trial now in December 2018. We began to prepare our mock trial, where Jack would represent me in front of a room full of three mock juries composed of approximately seventeen people total. I decided that in the mock trial, I would be the one to assume the role of Jeffrey Epstein’s attorney.
For my entire trial career, in mock trials I always represented the defense. I had paid very close attention to the problems in our case and the defenses that scared me most, and no one knew Epstein better than I did. Certainly, no one knew my case’s weaknesses better than I did. We had to make sure that the mock juries did not know the real identities of the lawyers and whom we really represented, otherwise they would realize who I was in the scheme of things and it would naturally bias the outcome.
On Epstein’s side, I had put together all the defenses I would present if I had been representing Epstein, including all those defenses his various attorneys had cooked up over the years, particularly the “no damages” argument Scott Link had developed by this time. The liability case was tough to defend on behalf of Epstein. It was undeniable. The evidence demonstrably proved the falsity of the allegations he had made against me in his complaint.
His bad motive for making those allegations was equally transparent. At the time he had exploited the Rothstein debacle, I was the one calling him out most for the crimes he believed he had otherwise gotten away with, and the CVRA case was a huge thorn in his side that he couldn’t remove. The posture in 2009, when he filed the case, was one where I was on the offense, eating his chess pieces one at a time, triangulating him, and leaving him with nowhere to go. He was already desperate, and when Rothstein happened, he seized on an opportunity.
We held the mock trial and, playing the role of Epstein’s lawyer, I argued that no matter what Epstein’s intentions were when he filed his complaint against Brad Edwards, nobody believed the allegations. In fact, Edwards’s profile had risen. Edwards had received eight jury verdicts in a row over a million dollars, and he’d recently won a record-breaking $71 million verdict. Ultimately, Edwards had suffered zero damages.
The results of the mock trial are confidential, but I can say that we left knowing two contradictory things: that a jury would likely find in “Edwards’s” (my) favor, but would likely not assess the damages very high.