Court Records
Filing # 136506318 E-Filed 10/13/2021 04:53:44 PM
IN THE CIRCUIT COURT OF THE
FIFTEENTH JUDICIAL CIRCUIT IN AND
FOR PALM BEACH COUNTY, FLORIDA
CA FLORIDA HOLDINGS, LLC, CASE NO.: 50-2019-CA-014681-XXXX-MB
Publisher of THE PALM BEACH POST,
DIVISION: AG
Plaintiff,
v .
DAVE ARONBERG, as State Attorney of
Palm Beach County, Florida; SHARON It
BOCK, as Clerk and Comptroller of Palm
Beach County, Florida,
Defendants.
cPLAINTIFF CA FLORIDA HOLDINeCLL S REPLY IN
FURTHER SUPPORT OF MOTION FOR SUMMARY
JUDGMENT AND INCORPORATED MEMORANDUM OF LAW
I. \ I N
The Clerk does not dispute any,4e 7 statements of fact set forth in The Palm Beach
E O SA
Post's Motion for Summary Jud ad, the Clerk belabors the uncontested point of law
that it may not, without a court lease the Jeffrey Epstein grand jury records. That is correct,
as The Palm Beach Post ledged at the June 2020 hearing on the motions to dismiss its
complaint. And
claims tha
ag
why it is before this Court — to obtain such an order. The Clerk further
aware of any authority or standing granted to its office to advocate for or
of any grand jury materials," but then proceeds for 23 pages of its Opposition
to argue that this Court should deny The Palm Beach Post's request to release the grand jury
records. This position represents a complete about-face from its position at the June 2020 motion
to dismiss hearing, during which it unequivocally stated that it was "not trying to block acrecs to
the records." Appendix at 13 (June 3 Hearing Transcript at 18:23-19:5).
Greenberg Trautig, P& • 401 East Las Olas Boulevard, Suite 2000 • FL Lauderdale, Florida 33301 • Tel 95,1.765.0500 • Fax [Phone Redacted] • www.ttlaw.cont
FILED: PALM BEACH COUNTY. FL ABRUZZO, CLERK, 10/13/2021 04 53 44 PM
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Case No.: 50-2019-CA-014681-MCC -MB
Reply In Further Support of Motion for Summary Judgment
More remarkably, the Clerk wrongly asserts that "[t]he specific subject matter of the
underlying grand jury proceedings is irrelevant to th[e] preliminary question concerning the
legality of The Palm Beach Post's suit against the Clerk." Opp. at 2 (emphasis added). The
underlying subject matter of the grand jury records sought is precisely what allows for their
exceptional release and what justifies this Court's exercising its discretion to ord u lic access.
The underlying subject matter is the fundamental basis for the relief sought e Palm Beach
Post. The undisputed facts support the Court's exercise of its discretio the Clerk of this
Court to release the Jeffrey Epstein grand jury records.
II. UNDISPUTED FACTS & PRO
The Palm Beach Post's Motion identified 76 cts, relying on evidence such as
HISTORY
police reports, sworn deposition testimony, cot i pscripts, and a voluminous United States
Department of Justice inquiry into the mis an of the Epstein prosecution — a report which
was compiled after "review[ing] m mg to the state investigation and prosecution of
Epstein, including sealed plea d jury transcripts, and grand jury audio recordings ... "
Appendix at 3 (OPR R p. 2
The Clerk Is to dress a single one of these 76 facts. Instead, it characterizes the
comprchensi aDgssertions as "somewhat slanted and argumentative." Opp. at 4. The Clerk
does no ich of the factual assertions were "somewhat slanted and argumentative," in
what way t y were "somewhat slanted and argumentative," or to challenge the evidence on which
any of the facts were based. The Clerk, though, attempts to dispute the material facts — again
without identifying any fact in particular — by stating in a footnote that The Palm Beach Post's
assertion that the material facts are uncontested is "clearly not accurate." Opp. at 3 n.4. The Clerk's
vague argument is deficient.
2
Greening' Traurlg, PA • 401 bit Las Olas Boulevard, Sea° 70CO • Ft. Lauderdale. Florida 33301 • Tel [Phone Redacted] • Fax [Phone Redacted] • WWI/ tttaw tom
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Case No.: 50-2019-CA-0146814COCC-MB
Reply In Further Support of Motion for Summary Judgment
Because the Clerk's commentary should be disregarded, its intentional avoidance of the
evidence means that The Palm Beach Post's facts are undisputed. Under Florida Rule of Civil
Procedure 1.510(a), "[t]he court shall grant summary judgment if the movant shows that there is
no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law."
In Florida, the moving party no longer needs to conclusively disprove the nonmo
the case in order to eliminate any issue of fact. See In re Amendments to Fla.
309 So. 3d 192, 193 (Fla. 2020). Rather, "the burden on the moving
`showing'—that is, pointing out to the I] court—that there is an absen
nonmoving party's case." Celotex Corp. v. Catrett, 47
nonmoving party "must do more than simply show th
material facts." Matsushita Elec. Indus. Co. v.
also
theory of
Civ. P. 1.510,
discharged by
idence to support the
17, 325 (1986). Then, the
ome metaphysical doubt as to the
io Corp., 475 U.S. 574, 586 (1986); see
v. Liberty Lobby, Inc., 477 U.S. 7-48 (1986) ("[T]he mere existence of some
alleged factual dispute between the not defeat an otherwise properly supported motion
for summary judgment; the req that there be no genuine issue of material fact."). Under
this standard, The Palm B ch Post fills the first summary judgment prong. Below, it will show
that the law suppo leas f the Epstein grand jury materials. c
III. ARGUMENT
A. R 0 IS INAPPLICABLE
Co ry to the Clerk's argument, Rule 2.420 of the Florida Rules of Judicial
Administration is inapplicable. Rule 2.420 establishes procedures for maintaining the
confidentiality of certain records and granting public access to non-confidential records. It lists 23
presumptively confidential categories, which include grand jury materials. Rule
2.420(d)(1)(3Xxvi). For records not automatically confidential, Rules 2.420 (e), (0, (g) and (h)
3
Graeae.' Traurig, PA. • 401 fast las Olas Boulevard, Su.te 1000 • Ft. Lauderdale. Honda 33301 • Tel [Phone Redacted] • Fax [Phone Redacted] • www.rttl i4,0440
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Reply In Further Support of Motion for Summary Judgment
include procedures to determine confidentiality. Poole v. South Dade Nursing & Rehab. Ctr., 139
So. 3d 436, 440 (Fla. 3d DCA 2014). As grand jury materials are automatically confidential, they
do not fall within the procedures of subsections (e), (f), (g), and (h). Further, the Epstein materials
are not "trial court records in non-criminal cases" subject to subsection (e). Nor are they "trial
court records in criminal cases" subject to subsection (f), which is limited to motio s ade by the
"state, a criminal defendant or an affected non-party." None of these requires present.
The Clerk's citations to subsections (j), (I), and (m), and its tha Rule 2.420 is the
exclusive method to seek grand jury materials, are also inaccurate. gh the Clerk uses the
term "must" for subsection (j), that subsection expressly s court order allowing access
to confidential court records may be obtained by filth motion." (Emphasis added). That
rule assumes an on-going criminal or civil actio ng "court records." Rule 2.420(b)(1)(A).
As the Clerk alleges that grand jury matt
they are not included in subsection
N" ministrative records," Rule 2.420(b)(1)(8),
e Clerk's argument refutes itself.
The Clerk further mi zes subsection (1) by claiming that "an action for
mandamus" is the only p s for seeking administrative records. However, subsection (I) states
that while an acti for damus may be brought, so may "other appropriate relief." And, for
subsection (I) e ms to instances where a party is seeking "expedited review," which is not C
sought*
Sim arly, subsection (m) does not create a condition precedent for seeking grand jury
materials. Subsection (m) merely provides that where a request is made for documents, it must be
in a reasonable manner and in writing to the custodian. Nowhere does subsection (m) make these
actions a condition precedent to suit. In any event, this lawsuit fulfills the writing requirement and
it is undisputed that the Clerk has not provided any Epstein grand jury materials and is opposing
4
Greta.; Trawl{, PA. • 401 bit Las Olas Boulevard, Su.te )01:0 • Ft. Lauderdale, Honda 33301 • Tel [Phone Redacted] • Fax [Phone Redacted] • www.attaw.com
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Reply In Further Support of Motion for Summary Judgment
their production.
Finally, the Clerk's reliance upon Times Publishing Co. v. Ake, 660 So. 2d. 255 (Fla. 1995),
is misplaced. Ake did not address grand jury materials nor Fla. Stat. Section 905.27. It merely holds
that the Florida Public Record Act is not applicable to requests for judicial databases while Rule
2.420 is applicable.
B. A DECLARATORY JUDGMENT ACTION IS PROPER
The Clerk complains that this declaratory judgment action is im
It is well-settled that where constitutional or statutory rights are in dis
action is appropriate. Rosenhouse v. 1950 Spring Term Gran
Hildebrandt v. Dep't. of Nat. Resources, 313 So. 2d
Clerk ignores its previously relied-upon Ake
action to determine the applicability of Rule
opposition to The Palm Beach Pos,
relevance of this declaratory ju
declaratory judgment
So. 2d 445, 448 (Fla. 1952);
3d DCA 1975). Ironically, the
a clerk brought a declaratory judgment
the Florida Public Record Act. The Clerk's
to Epstein grand jury materials also proves the
C. THE CLERK i PLICITLY CONCEDES THAT THE PALM BEACH POST HAS
PUBLIC ACCESS TO THE EPSTEIN GRAND JURY
In its n,"%4e Palm Beach Post argued that it has standing under Section 905.27. See
Motion at . This is a related — but separate — issue from whether Section 905.27 provides
a private n t of action. The Clerk addresses the latter argument, but aside from acknowledging
that "The Post's Motion repeats the same arguments about its alleged standing ... that it alleged
in the Amended Complaint and which it argued in its Opposition to the Clerk's Motion to Dismiss
In a case discussing a clerk's role as custodian of grand jury materials, a federal court observed that a clerk is a
proper party to receive a subpoena for state grand jury materials. Whiffler v. Clay of Sunrise, No. 07-60476, 2007
U.S. Dist. LEXIS 114239, at •12 n.4 (S.D. Fla. Aug. 22, 2007).
5
Greenberg Trautle, PA. ■ 401 East Las Olas Boulevard, Sure POW • Ft. Lauderdale. Florida 33301 ■ Tel [Phone Redacted] • Fax [Phone Redacted] ■ WWI/ ttlaw tom
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Reply In Further Support of Motion for Summary Judgment
Count II" (Opp. at 14 n.10), does not address The Palm Beach Post's standing arguments or the
authorities supporting standing. Similarly, in granting the State Attorney and Clerk's motions to
dismiss Count II of the Amended Complaint, former Chief Judge Marx relied on arguments that
there is no private right of action under Section 905.27, but did not address the threshold standing
argument s In ignoring the First Amendment bases supporting The Palm Beach P st standing,
the Clerk implicitly concedes that The Palm Beach Post has standing to purst relief it seeks
— whether that be under the private right of action implicit in Section 9 laborated further
below), under the Constitution, or by invoking the Court's inherent a and discretion.
D. FLA. STAT. SECTION 905.27 CREATES A PR AUSE OF ACTION
At all times in this proceeding, The Palm Beach knowledged that Section 905.27
does not explicitly create a private right of a no excessive boldfacing, italicizing, or
underscoring is necessary on that undispu int. See Opp. at 17. But that does not end the
inquiry, as former Chief Judge owledged in her June 2020 Order. See June 3,
2020 Order at 3-4.
Where there is n expres ght of action in a statute, legislative intent has become the
primary factor3 tha ost c rts rely on to determine whether a cause of action exists. See Marshy i t
v. N. Sinha So. 2d 983, 985 (Fla. 1994). Given the dearth of legislative historyC)
2 Notably in this regard, during the hearing on the motions to dismiss, former Chiefludgc Marx stated, "I don't think
anybody is saying that there isn't a cause of action [under Section 905.27] or that the press doesn't have standing."
Appendix at 13 (June 3, 2020 Hearing Transcript before the Honorable Krista Marx ("June 3 Hearing Transcript")),
at 8:2-4; see also 8:7-8 ("nowhere have I said there isn't a cause of action."); 15-16 ("So I'm not telling you, you
don't have a cause of action.")). 3 While legislative intent has become the "primary factor" in determining whether a cause of action exists when a
statute dots not expressly provide for onc, this dots not mean that other factors, such as potential public benefit, arc
excluded from consideration. See, e.g., Fischer v. Metcalf, 543 So.2d 785 (Fla. 3d DCA 1989). Just as the Clerk
fails to address the legislative history argument, he also fails to address any other factors, including public benefit.
As set forth in the Motion, balancing the public benefit that would result from disclosure outweighs the customary
reasons for grand jury secrecy. See Motion at?! 103-110.
6
Greenberg Trout*, PA. • 401 bit Lai Olas Boulevard, State )00co • Ft uuderdale. Honda 33301 • Tel [Phone Redacted] • Fax [Phone Redacted] • vn__.2141.1YS9f13
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Case No.: 50-2019-CA-0146814COCC-MB
Reply In Further Support of Motion for Summary Judgment
surrounding the enactment of Section 905.27, it is appropriate to consider acts passed at other
legislative sessions.° Fischer, 543 So.2d at 790. In 1994, at the same time Section 905.27 was
reenacted to expressly provide three exceptions to grand jury secrecy, including furthering justice,
the Florida legislature also reenacted Fla. Stat. § 905.395, which concerns the secrecy of statewide
grand juries. 1994 Fla. ALS 285, 1994 Fla. Laws ch. 285, 1994 Fla. SB 114; Fla. at. § 905.395.
Like Section 905.27, Section 905.395 has a general prohibition on disc of grand jury
proceedings, absent a court order. Fla. Stat. § 905.395. Tellingly, how on 905.395 does
not provide any specific exceptions to nondisclosure. Through the i nal omission of these
exceptions, including the fundamental "furthering justice" ¶ it can be understood that the
legislature did not intend for court-ordered disclosu de grand jury records to further
justice, and did not anticipate such disci Id benefit the public. By contrast, the
icflegislature's decision to include the catch 1 ering justice" exception in Section 905.27
reflects an intent to protect and info
777777
—"'the ultimate benefactors of the criminal justice
system — by providing a m cess in those rare situations where the integrity and
legitimacy of the grand j rocess have been called into serious question. Accordingly, implying
a private right of ion i nsistent with the purposes underlying the legislative scheme in s r
Chapter 900 lo da Statutes.' Cy
Neither the Clerk nor Judge Marx addressed or challenged this analysis.
There arc a number of cases where litigants have sought grand jury materials under Section 905.27 and its
predecessors with varying degrees of success. In none of these cases did the court question or hold that the statute
did not create a private right of action. See State cc rel. v. Dewell, 167 So. 687, 689-90 (Fla. 1936) (using
the phrase "in furtherance of justice" to require a grand jury witness to provide his testimony to a criminal
defendant); Gamin:Laski v. State, 132 So. 3d 678, 707 (Fla. 2014); Bing v. State, 46 Fla. L. Weekly DI580 (Fla. 1st
DCA July 6, 2021); James v. Willie, 480 So. 2d 253 (Fla. 4th DCA 1985) (involving a deceased inmate's estate
bringing suit against prison officials). Judge Marx failed to address these and other cases.
7
Grattan Trout*, PA. • 401 East las Olas Boulevard, Su.te JOCO • Ft. Lauderdale, Honda 33301 • Tel [Phone Redacted] • Sax [Phone Redacted] • WWII ttlaw tom
EFTA02734402
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Reply In Further Support of Motion for Summary Judgment
E. SECTION 905.27, THE FIRST AMENDMENT, AND THIS COURT'S INHERENT
POWER CONSTITUTE THREE INDEPENDENT GROUNDS FOR RELEASING
THE GRAND JURY RECORDS
As set forth in The Palm Beach Post's Motion, even in the absence of Section 905.27's
statutory framework, disclosure is appropriate pursuant to this Court's inherent authority over
grand jury proceedings because of the exceptional public interest in this case and mpelling
circumstances supporting transparency rather than continued secrecy.
Unlike the cases the Clerk cites for the proposition that "more th e or speculation"
about what the grand jury records may contain is needed to lift the vet y (Opp. at 21), the
overwhelming and undisputed evidence before this Court "surmise or speculation"
about what the grand jury records may contain. B just one example, during his
investigation of the Epstein sex crimes, the t hie of the Criminal Division of the U.S. DepS ,
Attorney's Office told Criminal Chief Matt e chel: `The state intentionally torpedoed [the
case] in the grand jury so it was b h Q 3.' Appendix at 3 (OPR Report, p. 26). The Clerk
fr)
cannot credibly maintain that 7' e C a each Post has not laid a "proper predicate" (Opp. at 22),
or that the relief it seeks i based o 'surmise or speculation." The Palm Beach Post does not deny
that it bears the bu n of tifying this exceptional release of grand jury records, but maintains S
that the extra ' td serial criminal acts at issue, and the evidence already publicly revealed
regardin isconduct in prosecuting Epstein, has "satisfactor[ily] establish[ed] [its] right
to its use." ate v. Tillett, 111 So. 2d 716, 724 (Fla. 2nd DCA 1959).
The Clerk does not dispute that this Court has the inherent power to release the records,
only that it should not do so because such release would conflict with other laws. It does not. First,
as set forth above, the release of grand jury records would be consistent with the press and public's
right of access under the First Amendment. Second, the release would be pursuant to an express
8
Greenberg Trawl& PA. • 401 bit las Olas Boulevard, Sute JOCO • Ft. Lauderdale, Florida 33301 • Tel [Phone Redacted] • Fax [Phone Redacted] • VOVIVI elaw tom
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Reply In Further Support of Motion for Summary Judgment
statutory provision that serves as an exception to the secrecy of grand jury records. Third, because
The Palm Beach Post is not seeking these materials "for use in a criminal [or civil] case," the
limitations on its use of those materials (i.e., "only ... in the defense or prosecution of the civil or
criminal case and for no other purpose whatsoever") is not so limited. See Fla. Stat. § 905.27(2).
In sum, The Palm Beach Post has constitutional standing to request the e of the
Epstein grand jury records, and such request should be granted in the furtherati;t fjus ice.
0 IV. CONCLUSION
CIThe Palm Beach Post respectfully requests that this Court, p t to Fla. Stat. Section
905.27(1) and the Court's inherent authority, order the Cle
copies of the testimony, minutes, and other evidence
grand jury during the first Epstein sex ab
inspection, it can be made available to The
+6s
ourt to lodge with this Court
2006 to the Palm Beach County
lion so that, following an in camera
ch Post and the public.
espectfully submitted,
GREENBERG TRAURIG, P.A.
Attorneys for CA Florida Holdings, LLC,
Publisher of The Palm Beach Post
Stephen A. Mendelsohn, Esq.
401 East Las Olas Blvd., Ste. 2000
Fort Lauderdale, Florida 33301
Telephone: (954) 768—8225
Facsimile: ([Phone Redacted]
By: a/Stephen A. Mendelsohn
STEPHEN A. MENDELSOHN
Florida Bar No. 849324
mendelsohns®gtlaw.corn
smithlegtlaw.com
[Email Redacted]
By: /s/ Michael J Grygiel
MICHAEL J. GRYGIEL
9
Greenbefg 'fraud& PA. • 401 fast Las Olas Beulevard,Suae 2000 • Ft. Lauderdale, Ftodda 33301 • Tel [Phone Redacted] • Fax [Phone Redacted] • *WO elaw tom
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Reply In Further Support of Motion for Summary Judgment
(Admitted Pro Hac Vice)
54 State St., 6th Floor
Albany, New York 12207
Telephone: ([Phone Redacted]
Facsimile: ([Phone Redacted]
grvaielmegtlaw.com
By: /s/ Nina D. Boyajian
NINA D. BOYAJIAN
(Admitted Pro Hac Vice)
1840 Century Park East, Ste. 1
Los Angeles, California 90
Telephone: (310) 586-7
Facsimile: (310) 586—
bovai iann(agtlaw.co
riveraal law
is)
10
Greening Trawl& PA. • 401 East las Olas Boulevard, kite 2000 • Ft Lauderdale. Honda 33301 • Te195a.765.0500 • Fax [Phone Redacted] • wend 40aw cam
EFTA02734405
Case No.: 50-2019-CA-0146814COCC-MB
Reply In Further Support of Motion for Summary Judgment
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 12th day of October, 2021, a true and correct copy of
the foregoing has been filed with the Clerk of the Court using the State of Florida e-filing system,
which will send a notice of electronic service for all parties of record herein
40:Ar
/s/ Stephen A. Mendelsohn
STEPHEN A. MENDELS
AC77VE 80572600v7
11
Greenberg Trawl& PA. • ICI East Las Olas Boulevard, Sukte 2000 • Ft Lauderdale. Honda33301 • Te1954.765.0500 • Fax [Phone Redacted] • wend elaw tom
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