Court Records
Filing # 158743660 E-Filed 10/06/2022 05:00:12 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 R.
BOCK, as Clerk and Comptroller of Palm
Beach County, Florida,
Defendants.
co
WRITTEN CLOSING ARGUMENT OF C DA HOLDINGS, LLC,
PUBLISHER OF THE PALM BEACH PO Olt ATE ATTORNEY DAVE
ARONBERG'S AMENDED MOTIO
FLORIDA STATUS
ATTORNEYS' FEES UNDER
TION 57.105
Plaintiff, CA Florida Holdings, pu8ljsher of The Palm Beach Post ("Plaintiff" or the
"Post"), pursuant to the Court's i the conclusion of the evidentiary hearing held on
September 6 and 8, 2022, res submits this Written Closing Argument opposing State
Ir r, Attorney Dave Aronber ovember 9, 2020 Amended Motion for Attorneys' Fees (the
"Amended Motio under lorida Statutes § 57.105 [DE 50].
L INT ON
Attorney's Amended Motion should be denied with prejudice, as it is both
procedural) and substantively deficient. The evidence establishes that—in an effort to inform the
public how sexual predator Jeffrey Epstein received a highly unusual and extremely lenient plea
agreement following his 2006 grand jury indictment by a former Palm Beach County State
Attorney—the Post and its attorneys conducted an extensive factual and legal investigation,
leading to the filing of this case seeking the Epstein grand jury materials. The Post relied upon
1
*** FILED: PALM BEACH COUNTY, FL ABRUZZO, CLERK. 10/06/2022 05:00:12 PM ***
EFTA02734959
statutes and case law supporting disclosure of the grand jury materials under the unique and
extraordinary circumstances of the Epstein case—including Miami Herald Pub. Co. v. Marko, 352
So. 2d 518 (Fla. 1977), in which the Florida Supreme Court recognized an exception to grand jury
secrecy under the First Amendment in the context of grand jury findings of public corruption—to
argue that a similar exception to grand jury secrecy should be recognized in the E case.
While ultimately denying the relief that the Post sought, in the Court's Final J nt on the
declaratory relief claim in Count I, Judge Hafele stated that the Post's ar re "palatable
and persuasive" and presented "strong arguments" for a more expa iv ction of the "in
furtherance of justice" language of Florida Statutes Section 90 J e Hafele also noted the
case presented questions of "first impression" regardi tute's interpretation and the
' SS , Court's inherent authority over grand jury proceedi 'c uestions also implicated "issues of V
"Sloc tlw juryconstitutional import regarding the historic s een grand secrecy and the First c ote
Amendment." Ex. J30 at pp. 5, 7, 11, I Th issues are now on appeal before the Fourth
District Court of Appeal.
As was shown at the e hearing, the State Attorney's Amended Motion has no
rmerit. It is the State Atto ' burden—and a heavy one—to prove sanctions are permitted and
warranted under 'da S lutes Section 57.105 as to Count I of the Amended Complaint, the
declaratory t claim. This is a burden the State Attorney not only failed to meet, but cannot
meet, dmitted in his Answer that the Count I declaratory judgment claim presented a
"good faith dispute" between the parties. Ex. J09 at ¶ 72; Ex. J10 at ¶ 72.
The State Attorney's accusation that he was named in his official capacity—in a claim
Citations to "Ex. J_" correspond to the hearing exhibit numbers set forth in the parties' Joint
Exhibit List, filed with the Court on September I, 2022.
2
EFTA02734960
seeking access to grand jury materials from a prosecution by a former State Attorney—solely
because of some "personal vendetta" against him has no factual basis. Hrg. Tr.2 at 58:6-59:25.3
Rather, the evidence shows a thoughtful, deliberate, and detailed factual investigation and legal
analysis by the Post's attorneys to determine what claims to bring and what parties were required
to be joined to obtain public access to Epstein's grand jury materials.
The State Attorney was always a necessary party—the reasons requiring IA pder were
alleged in the initial Complaint, continued in the Amended Complain ver changed,
contrary to the State Attorney's argument that the Post somehow "mo e t 'posts." Hrg. Tr.
at 53:1-11, 59:15-25, 60:21-61:14. Unlike the Clerk, who was edit s official capacity only c)
as being "in possession of documents that are the subjec i ion," [Ex. J04 at ¶ 4; Ex. J09
at ¶ 4], the State Attorney was named in his °Melia p rimarily because of his "authorityS 2
in grand jury proceedings pursuant to Fla. St
see also Ex. J16 (June 23, 2020 Letter f
Dave Aronberg).
*o 7.03." See Ex. J04, ¶ 3; Ex. J09 at ¶ 3;
elsohn to D. Wyler, counsel for State Attorney
As the sole public offic 1 wi authority over grand jury proceedings, the State Attorney
had the right and authori p so chose, to object to the release of grand jury materials by the
2 Full transcri, evidentiary hearings on September 6 and 8, 2022 ("Hrg. Tr.") have been
filed with' and condensed versions of the transcripts hereto are attached as Composite
Exhibit A.
3 The Sta Attorney's belief that the only reason his Office was named as a defendant was because
of a "pe al vendetta" and animus to "go after" him on behalf of the Post (Hrg. Tr. at 58:6-
59:25) was not supported by any exhibit, nor any pleadings or filings. To the contrary, the Post's
attorney, Stephen Mendelsohn, testified he had a great deal of respect for the State Attorney and
his Office. Hrg. Tr. at 136:17-137:13. Despite the State Attorney's speculation about the Post's
purportedly adverse motivations and his criticism of the Post's prior reporting, none of the articles
he took issue with were offered in evidence. Further, the State Attorney's allegation that the Post
had coordinated its reporting with its counsel was rebutted as Mr. Mendelsohn testified that he did
not speak to the Post's editorial staff about its news coverage of the issues in this litigation. Hrg.
Tr. at 135:23-136:16.
3
EFTA02734961
Clerk. The State Attorney exercised his authority and objected to release of the grand jury
materials by his motion to dismiss the initial Complaint, and again in his Answer to Count I and
Motion to Dismiss Count 11 of the Amended Complaint. Ex. J06; Ex. J10.
Once the State Attorney changed his position, on October 14, 2020, by affirmatively stating
that he did not obiect to release of the grand jury materials if ordered by the Coup, the Post
dismissed the State Attorney from the lawsuit on October 21, 2020. Yet, nineteeA4ls after his
dismissal, on November 9, 2020, the State Attorney filed the Amended M
Because the Amended Motion was filed after the State Atto n dismissed from
the case and because there was a lack of proper service of the d otion, there is no need
to address the merits of the State Attorney's Amended ty nn der the law, the Court lacks
jurisdiction to consider it, and the Amended Motio "Sic
II. THE COURT LACKS JURISD O CONSIDER THE AMENDED
MOTION
denied on that basis alone.
A. THE STATE ATTORNEt in rn HIS AMENDED MOTION AFTER HE WAS
DISMISSED As A PA
As a threshold—but I—point, the Court lacks jurisdiction to consider the
Amended Motion (the on otion set for hearing before the Court) because, as the State Attorney
plainly admitted, led h Amended Motion on November 9, 2020, after he had already been
dismissed October 21, 2020. Ex. J23,125; Hrg. Tr. at 44:3-6, 57:2-12. With that
admiss ourt does not have jurisdiction to consider the Amended Motion. Sidlosca v.
Olympus 1 Co., 276 So. 3d 987, 989 (Fla. 3d DCA 2019) [Authorities TAB 26] ("[A] trial court
has continuing jurisdiction to consider a section 57.105 motion for sanctions only where the motion
for sanctions was filed with the court before a voluntary dismissal") (emphasis added).
4
EFTA02734962
B. THE AMENDED MOTION VIOLATED THE "SAFE HARBOR" NOTICE. PROVISION IN
SECTION 57.105(4). AS IT WAS NEVER SERVED BEFORE IT WAS FILED.
Compounding the above error, the State Attorney admitted that the Amended Motion was
not properly served before it was filed. Hrg. Tr. at 16:16-17:21; 92:2-93:25. As a result, the
Amended Motion violated the strict "safe harbor" notice provision of section 57.105(4), which
requires a motion for fees to be served on the non-moving party at least 21 days bef it is filed.
Fla. Stat. § 57.105(4) ("A motion by a party seeking sanctions under this sec ust served
but may not be filed with or presented to the court unless, within 21 d s a service of the
motion, the challenged paper, claim, defense, contention, allegation, denylal is not withdrawn or
appropriately corrected.") (Emphasis added).
The State Attorney's admission that if he had s mended Motion before the Post
dismissed him as a party on October 21, 2020, he a no motion for fees, is also fatal. Hrg.
Tr. at 93:3-25. Without proper safe harbor
Liberty Express, Inc., 252 So. 3d at 40 er to have properly complied with section 57.105,
[the filing party] must have first proposed motion upon the party it sought to sanction.")
This is because "[t]he primary p e5e of section 57.105's safe harbor provision is to provide the
recipient of the moti n wi n ice and the opportunity to withdraw or abandon a frivolous claim
before sanctio t." Id.; see also Ferere v. Shure, 65 So. 3d 1141, 1145 (Fla. 4th DCA
2011) [A AB 6] (section 57.105(1) was not applicable where there was no way for
plaintiff's nsel to withdraw an allegation after a post-trial motion).
C. THE STATE ATTORNEY MAY NOT RELY ON SERVICE OF A PRIOR "PLACE-
MARKER" MOTION FOR FEES TO AVOID TILE STRICT REQUIREMENTS OF 57.105.
The State Attorney relies on a prior—what he calls a "place-marker"—motion for
attorneys' fees that was served on June 8, 2020 and filed on July I, 2020, in an attempt to avoid
Court does not have jurisdiction. See MC
5
EFTA02734963
the safe harbor requirements of 57.105(4). Ex. J14; Ex. J18; see also Ex. J21 at pp. 5, 13. His
reliance is misplaced.
Service of that initial "place-marker" motion is not sufficient to comply with section
57.105(4), because once the State Attorney filed his Amended Motion containing new arguments,
the 21-day safe harbor notice was required anew. See Lago v. Kame By Design, LLC, 120 So. 3d
73, 75 (Fla. 4th DCA 2013) [Authorities TAB 14]. The Lago Court stated:
We hold that if a party files a subsequent or amended motion for under
section 57.105 and raises an argument that was not raised in the ri on for
section 57.105 sanctions, the subsequent motion must indepe ply with
the twenty-one-day 'safe harbor' provision of section 57.105(
Id. at 75; see also Moore v. Estate of Albee by Benzenhafe .3d 192, 195, n.2 (Fla. 5th
DCA 2018) [Authorities TAB 20] (court could not co 1 amended motion for section 57.105 m s 61
tiCtfees because it raised additional grounds for san ot ised in the defendant's prior motion
for fees and there was "no indication that nd t] complied with the twenty-one-day 'safe
147 So. 3d 569, 572 (Fla. 3d DCA harbor' provision of section 57.105
2014) [Authorities TAB 22].
Lago and its pro eny ish that the State Attorney was required to independently
comply with the 21 y sloe fiarbor before filing his Amended Motion, because the Amended
Motion made at ents and referenced new evidence, including the State Attorney's August
2020 mot
time of th "place-marker" motion. Compare Ex. J14 with Ex. J25; see also Hrg. Tr. at
94:6-17.
mmary judgment and affidavit in support, which were not in existence at the
6
EFTA02734964
III. THE INITIAL "PLACE -MARKER" MOTION CANNOT BE CONSIDERED, AND
EVEN IF IT COULD IT WHOLLY FAILS TO SATISFY SECTION 57.105
A. THE INITIAL "PLACE-MARKER" MOTION FOR FEES WAS NEVER NOTICED FOR
HEARING.
Apparently recognizing at the hearing that the State Attorney's violation of section
57.105(4)'s safe harbor provision is fatal to the State Attorney's Amended Motion, in his opening
statement the State Attorney's counsel said he would now rely, in the alternativS the initial
4;1,"place-marker" motion for attorneys' fees-i.e., the one-page motion and age enclosure
letter, served on June 8, 2020 [Ex. J14] and filed on July I, 2020 [Ex. 0
The State Attorney's July I, 2020 "place-marker" fee mot never been set for
hearing. Hrg. Tr. at 128:1-4. The only motion that was s ng, and re-set for hearing at
least twice, is the November 9, 2020 Amended x. 325; Hrg. Tr. at 132:14-17.
Accordingly, the Amended Motion is the onl hat may properly be considered by the
Court. See, e.g., v. Persighetti,
"trial court erred in ruling on a
remand). While the State Atto
1226, 1226 (Fla. 4th DCA 2022) (holding the
as not noticed for hearing," requiring reversal and
the Court should also now consider his initial fee motion
based upon Logo, that ion does not save him, as Lago did not address whether the first
sanctions motion been roperly noticed for hearing and the appellate court did not consider
whether con on f the first motion would violate the opponent's due process rights. See
Lago, • at 75. As stated above, were this Court to now address the "place marker
"motion, ich was not noticed for hearing, it would violate the Post's and its attorneys' due
process rights.
7
EFTA02734965
B. THE INITIAL "PLACE-MARKER" MOTION FOR FEES WHOLLY FAILS TO SATISFY
SECTION 57.105.
Even if the initial "place-marker" motion had been noticed for hearing (which it never was)
and the Court could consider that motion (which it cannot), the initial motion does not help the
State Attorney. The barebones "place-marker" motion fails to meet the high burden of section
57.105. The Court must look at the substance, or lack thereof, of that motion, as of at moment
in the timeline, to determine whether at that time the State Attorney met his bu 11f Of s wing the
claim was frivolous or, in other words, that the Post knew or should have ow that time there
was no longer any justiciable claim. See Chue v. Lehman, 21 So. 3d 8 (Fla. 4th DCA 2009)
("Thus, we must consider the evidence presented at the e hearing concerning what
[plaintiff] and his attorney knew or should have known I po tin the litigation.") [Authorities
TAB 1]; Weatherby Assoc.'s, Inc. v. Ballack, 7138, 1142-43 (Fla. 4th DCA 2001)
("First, the court must determine whether th t w ri volous when initially filed. If it was not,
then the court must determine whethe ame frivolous after the suit was filed.") (finding
that "[a]ny reasonable inferen e defendant was working for plaintiff's competitor
disintegrated during discovery aifY.Q4tera deposition revealed the opposite, "leaving no justiciable
issues of law or fact" and n ering the suit frivolous" at that point) [Authorities TAB 30].4
There on ne purported basis for sanctions stated in the first "place-marker" motion
(technics nclosure letter to that one-page motion) regarding the declaratory relief claim
4 See also Tr. Mortg., LLC v. Ferlanti, 193 So. 3d 997, 1001 (Fla. 4th DCA 2016) ("Instead, like
here, where the party reasonably believes the factual basis for its claim exists, it is entitled to
proceed with its claims and seek to prove those facts. If attempts to prove those facts are fruitless,
that is still not cause for sanctions where the party's initial belief was well-founded. It is only in
circumstances like Country Place where the party knew or should have known at the time of filing
that the material facts were nonexistent that a claim is truly frivolous and worthy of sanctions.")
[Authorities TAB 28].
8
EFTA02734966
in Count 1—the argument that the State Attorney did not have possession or custody of the Epstein
grand jury materials. Ex. J14; Ex. J17. Did that argument alone end the matter as to the State
Attorney? No. Did that argument alone make the State Attorney's joinder in this case so frivolous
as to be completely untenable? Absolutely not.
At the time the first "place-marker" motion was filed on July 1, 2020, there w s no sworn
testimony in the record as to what grand jury materials the State Attorney and hi e actually
possessed. It was not until August 18, 2020, more than six weeks after th i of the safe a d
harbor period for the initial place-marker motion, that the State A e his motion for
summary judgment and affidavit in support, in which he stated oaZlffor the first time that he
did not have possession of any grand jury materials soug n mplaint, and in which he first
stated his position that he did not have the authority hat the Clerk provide access to the i
grand jury materials. Ex. J18; Ex. J19. Mo % July 1, 2020, the State Attorney had not rse lpth
yet addressed the other main reasons his ' • der i e case was necessary. Indeed, it was not until
October 14, 2020, more than three s er the expiration of the safe harbor period—and after
being reminded in both a lette mg by the Post as to why the Post had joined him in the
case—that the State Attokt Jed his reply stating "the State Attorney has no objection" to the
Clerk producing gad jurf materials if ordered by the Court. The State Attorney's failure to
address th prior to the filing of his "place-marker" motion would be fatal even if that
motio per to consider.
Even if the State Attorney could overcome the jurisdictional defects that prevent the Court
from considering the Amended Motion (which he cannot), under the merits, the evidence shows
that there is absolutely no basis for sanctions under section 57.105.
9
EFTA02734967
IV. THE EVIDENCE SHOWS THE STATE ATTORNEY FAILED TO MEET HIS
HEAVY BURDEN FOR SANCTIONS UNDER SECTION 57.105
A. LEGAL STANDARD FOR SANCTIONS UNDER SECTION 57.105.
Under Florida Statutes Section 57.105, the Court may award reasonable attorneys' fees
only if "the court finds that the losing party or the losing party's attorney knew or should have
known that a claim or defense when initially presented to the court or at any time efore trial:
(a) Was not supported by the material facts necessary to establish the cla' r se; or
(b) Would not be supported by the application of then-existing law to th • 40 1 facts." Fla.
Stat. § 57.105(1).
was 'frivolous or so devoid of merit both on the facts a s t
Before awarding sanctions, the trial court must make ' c it findings" that "the action
be completely untenable.'
. . . This burden is a heavy one." MC Liberty Ex s,1i I v. All Points Servs., Inc., 252 So. 3d
erS y397, 403 (Fla. 3d DCA 2018) [Authorities T 18 ernal citations omitted) (emphasis added);
see also v. Bailynson, 268 So. 8 (Fla. 4th DCA 2019) (setting forth the same
standard for sanctions). Thus, t motion for sanctions, the Court must make "explicit
findings" that a claim was frivo d completely untenable, and those findings "must be based
on substantial competent c fce that is either contained in the record or is otherwise before the
court." MC Lib2kryjress, Inc., 252 So. 3d at 397; see also Yakavonis v. Dolphin Petroleum,
Inc., 934 5, 618 (Fla. 4th DCA 2006) ("The trial court's finding must be based upon
substanti competent evidence presented to the court at the hearing on attorney's fees or otherwise
before the court and in the trial court record.") [Authorities TAB 31].
B. THE STATE ATTORNEY HAS NOT PROVEN THE DECLARATORY JUDGMENT
CLAIM WAS FRIVOLOUS OR DEVOID OF MERIT.
The State Attorney's Office—the executive branch office tasked with protection of
=secrecy —did not meet its burden of proving that naming the State Attorney's Office as a party
10
EFTA02734968
to a declaratory relief claim seeking access to grand jury records—from a prosecution and grand
jury proceeding conducted by the former State Attorney's Office—was "frivolous or so devoid of
merit both on the facts and the law as to be completely untenable." See, e.g., MC Liberty Express,
Inc., 252 So. 3d at 397.
Rather, the evidence demonstrates the opposite of what the State Attorney was required to
prove—it shows that the declaratory judgment claim was made in good fait the State
Attorney, in his official capacity, was a necessary party. Recognizing this tate Attorney
answered the declaratory judgment claim and admitted that a good f t existed between
the parties. Ex. 309 at ¶ 72; Ex. 310 at ¶ 72. The merit of the
Act )be undisputed, as the State Attorney admitted that "the D including the State Attorney]
have refused to provide, access to the testimony, mi , ther evidence presented in 2006 to
judgment claim should
the Palm Beach County grand jury" and "a pute exists between the panics." Ex. J09
at ¶ 72; Ex. J10 at ¶ 72. These admissio • a raponsive pleading doom the Amended Motion. se ...,
Rot) C. THE STATE Arro Y A NECESSARY PARTY.
The Post sued both the Cle ho was charged by law with maintaining possession of
rgrand jury materials, and tate Attorney's Office, who conducted the grand jury proceedings
and who by law charg with the authority and control over the grand jury process, including
the obligatio t grand jury secrecy. At the hearing, the State Attorney incorrectly argued
that this solely about who has custody and possession of the grand jury materials and
accused the Post and its attorneys of "moving the goalposts" by asserting other non-possessory
reasons for naming the State Attorney. Hrg. Tr. at 45:2446:5. No evidence supports these
arguments. As Mr. Mendelsohn testified, the Post's legal team determined after months of
intensive and careful legal and factual research that the State Attorney was a necessary party to
any action to obtain the Epstein grand jury materials and disclose them to the public because:
II
EFTA02734969
I. The State Attorney's Office was the public office that conducted the
grand July proceeding in 2006 and obtained Epstein's indictment, and to the extent
the Office had custody or possession of any grand jury materials, the Post was
requesting that they be produced and disclosed to the public.
2. The State Attorney is the public official with authority and co trol
over the grand jury system and, as such, has the power to object to release
jury materials by the Clerk. AS"
C )3. There was nothing under Florida law that a State
Attorney from requesting copies of grand jury materials thZlClerk during and
after close of criminal prosecution.
See Hrg. Tr. at 112:5-114:11; Ex. J04, Ex. J09, Ex. \
As demonstrated in the timeline attac
hearing, the Post never moved the goal hac grounds were set forth in both the original and Kcc e
the Amended Complaints:
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12
EFTA02734970
Both the initial Complaint, filed in November 2019, and the Amended Complaint, filed in January
2020, named the State Attorney in his official capacity and as having "authority in grand jury
proceedings pursuant to Fla. Stat. section 27.03." Ex. 304 at ¶ 3; Ex. J09, ¶ 3.
On June 23, 2020, the Post's attorney, Mr. Mendelsohn, responded to the State Attorney's
initial "place-marker" fee motion and specifically laid out the 3 reasons why the Sta e Attorney
was a necessary party, with citations to additional case law. Ex. J16. Mr. Mende June 23,
2020 letter explained that the State Attorney has "as its primary interest th n of its grand
jury system," citing In re Grand Jury Proceedings, 832 F. 2d 554, 55 1 . 1987) (italics in
original). Ex. J16. In that case, the federal government ) petitio Flo State Attorney to turnI
over state grand jury transcripts, and the State Attorney s eir release, citing to section
905.27. Later, a federal grand jury served a subpoe same State Attorney seeking grand
jury transcripts. Reversing his position, the e tt \ ey in response advised the federal court?
that he would produce the transcript ere c; demonstrating that irrespective of physical
possession, he had legal authority o ' nd deliver them pursuant to the subpoena. Ex. J16.
Mr. Mendelsohn then explain tha d on In re Grand Jury Proceedings, the "State Attorney
was named as a party no ' y as a custodian of grand jury records" but rather, "the relevant
State Attorney is eces ry party in order to protect the grand jury that the Office of State
Attorney su and to make arguments, if need be, against release of the grand jury
materi J16.
While In re Grand Jury Proceedings dealt with a subpoena as opposed to service of a
summons and complaint, both a subpoena and a summons served with a complaint are forms of
process. See, e.g., 28 C.F.R. §§ O. I I I (b); 0.114(e) (defining "process" as "a summons and a
complaint, subpoena, writ, orders, and the execution of court-ordered injunctions, and civil
13
EFTA02734971
commitments on behalf of a requesting party" for the U.S. Marshals Service, tasked with "[tjhe
service of all civil and criminal process emanating from the Federal judicial system").5 As there
was no pending civil case in which the Post could issue a subpoena, the only form of process
available to the Post was through service of a complaint. See Hrg. Tr. at 184:2-185:12; 186:25-
187:14:.6 It is also worth noting that the State Attorney in In re Grand Jury Proceed! gs inserted
himself into the case for the purpose of objecting to disclosure of grand jury reco en before
he was served with a subpoena, demonstrating that, regardless of the fo s, or even if
there is no service of process, a State Attorney may intervene for th f asserting grand
jury secrecy. See 832 F. 2d at 559.
<t )The State Attorney's counsel did not respond to M n ohn's June 23, 2020 letter nor
jhs edid the State Attorney address In re Grand Jury Pro si
it S iOn August 18, 2020, the State Attome r a p otion for summary judgment as to Count
I and an affidavit in support, in which ted der oath for the first time that he did not have
possession of any grand jury mate o tin the Complaint, and first stated his position that
he did not have the authority t that the Clerk provide access to the grand jury materials.
Ex. J18; Ex. J19.
Then, on ber , 2020, in its response memorandum to the State Attorney's initial
"place-mark' ion, the Post reminded the State Attorney that because he still objected to the
5 See also Ajllpajc v. Atria Grp., LLC, No. 8:13-cv-2415-T-35JSS, 2016 U.S. Dist. LEXIS 178214,
at *16 (M.D. Fla. Jan. 19, 2016) (stating process is "defined to include a summons, complaint, and
subpoena" and citing 28 C.F.R. § 0.114(e)).
6 Florida Rule of General Practice and Judicial Administration 2.420(j) was similarly not an
available method for the Post to seek the grand jury materials because that Rule requires a motion
seeking disclosure be tied to a pending civil or criminal case. See Fla. R. Gen. Prac. & Jud. Admin.
Rule 2.420(j). However, the State Attorney never argued that the Post should have sought access
to the grand jury materials under Rule 2.420(j), and Judge Marx did not suggest the same in her
June 8, 2020 Order.
14
EFTA02734972
Clerk's release of materials, the State Attorney remained a necessary party. Ex. J20, p. 8. Finally,
on October 14, 2020, in response to the Post's October 2, 2020 filing, the State Attorney changed
his position, stating for the first time that his Office no longer objected to the Clerk's release of
grand jury materials if ordered by the Court. Ex. J21 at pp. 1, 2. At that point, once the State
Attorney had sworn under oath that he did not possess the requested grand jury material and stated
in a pleading for the first time that his Office was no longer objecting to the Cle osing the
records, the State Attorney's presence in the action was no longer required. day, October
15, Mr. Mendelsohn responded that he was "pleased" to read the Sta t
0
's "unequivocal"
statement that his Office no longer opposed the Post's requ r juryy Epstein grand ii4)
materials. Ex. J22; Hrg. Tr. at 130:10-13. The Post dis ' tate Attorney on October 21,
2020. Ex. J23.
D. THE POST AND ITS ATTORNEY is GOOD FAITH. istir rS o
Although the Post has no burde this tion—it is the State Attorney's heavy burden vti.....e
to prove a lack of good faith —the e c monstrates that the Post and its attorneys prosecuted
the declaratory judgment clai e entire litigation, in good faith. The Post's attorneys
researched the proper me v jp,obtain the grand jury materials. This was a difficult analysis—it
was a case of firs ressidb, involving novel and complex issues, and matters of genuine public
concern.
before filing the initial Complaint, from June 2019 through November 2019, the
Post's attorneys conducted substantial fact investigation and legal research into possible claims
and the parties to be named in a lawsuit, in addition to relying upon the Post's extensive prior
investigation. The Post presented significant evidence, which it and its counsel uncovered through
painstaking due diligence, that a former State Attorney likely misused a grand jury by undermining
a victim's credibility based upon information provided by Epstein's defense counsel and supplied
15
EFTA02734973
various additional cases cited by t
says nothing overtly about the
to that former State Attorney. Hrg. Tr. at 195:16-23. In an effort to obtain materials that would
shed light on how Epstein obtained the extraordinarily lenient non-prosecution agreement and
sentence recommendation from the former State Attorney's Office, and in addition to the Post's
public records requests, Mr. Mendelsohn submitted to the State Attorney's Office specific
document requests in a letter dated August 27, 2019. Ex. JOI. The State Attorney never responded.
Hrg. Tr. at 104:20-22. Attorney Mike Grygiel followed up on Mr. Mendelsohn's I
9, 2019, and like Mr. Mendelson, did not receive a response from the St
Hrg. Tr. at 105:414. After other avenues proved unsuccessful, an
and analysis, the Post and its attorneys asserted thoughtful, g ait C
o i statutes and case law from Florida and other jurisdiction sqs Court to find a mechanism
to obtain the Epstein grand jury materials.
October
ey. Ex. J37;
iderable research
guments, supported by
As „There was room in the law for thee meb) , the Post, as shown in the Florida c
Supreme Court's decision in Miami Her Pu c . o. v. Marko, 352 So. 2d 518 (Fla. 1977), and
• • s filings throughout this case. While section 905.27
grand jury materials to the media, and codifies grand jury
secrecy, the Florida Supr purt held, where a grand jury identifies abuses and corruption by
public officials, t
and the evid
rationa
first A endment compels public disclosure of the grand jury's written report
fore the grand jury. 352 So. 2d at 523. The Post argued, based on the same
d by the Florida Supreme Court in recognizing a disclosure exception to grand
jury secrecy in cases involving findings of public corruption, that the Court should make a similar
exception to grand jury secrecy under the unique circumstances of the Epstein case. As in Marko,
where the Court recognized a First Amendment exception to grand jury secrecy, the Post argued
that the unique circumstances in this case provided a First Amendment basis for an exception to
16
EFTA02734974
grand jury secrecy in favor of the media. Hrg. Tr. at 75:19-77:3. The State Attorney ignores
Marko and the First Amendment.
In the Court's Final Judgment relating to the declaratory relief claim, the Court noted there
was ambiguity in the law, and expressed curiosity about whether "an appeal of this order might
persuade a higher court to establish a less restrictive interpretation." Ex. 330 at p. 12. In the
pending appeal, there is no longer a need to name the State Attorney he stated
affirmatively on the record his Office does not object to the Clerk's release ry materials.
Moreover, in the appeal, the Clerk has now changed its position an no er" objects to the
disclosure of the grand jury materials if ordered. Hrg. Tr. at 2 2uritie actions of the Post
C ih)and its attorneys, in seeking an exception to grand jury s er the First Amendment like
\, that recognized by the Florida Supreme Court in at d in advocating for the Court to i tt
"establish a less restrictive interpretation" of ~• herance of justice" language in section S r
905.27, are not sanctionable under secti 7.10"‘....„
E. THE POST'S CLAI
SECTION 57.10S
At the very least, in this
faith argument for e tens'
CIFICALLY EXCEPTED FROM SANCTIONS UNDER
f first impression, the claim for declaratory relief was a good
modification of the law, and according to section 57.105(3Xa),
sanctions cann ed. See Fla. Stat. § 57.105(3)(a) (monetary sanctions cannot be awarded:
"if the co nes that the claim or defense was initially presented to the court as a good faith
argument the extension, modification, or reversal of existing law or the establishment of new
law, as it applied to the material facts, with a reasonable expectation of success").
In the Court's Final Judgment relating to the declaratory judgment claim, as it remained
pending against the Clerk, Judge Hafele described the Post's arguments as "sincere," and
"palatable and persuasive" and noted this was a case of "first impression" that "implicate[d] issues
17
EFTA02734975
of constitutional import," in the context of "genuine subjects of public interest and concern. .. ."
See Ex. J30 at pp. 5, 11, 13. Thus, 57.105 sanctions are not appropriate.
F. THE STATE ATTORNEY'S FOCUS ON THE PREVIOUSLY DISMISSED STATUTORY
CLAIM IN COUNT II IS MISGUIDED.
While the State Attorney focuses on the previously dismissed claim under section 905.27
in Count II, and the June 3, 2020 hearing before Chief Judge Marx on the motion toss Count
II, that hearing has no relevance to the instant motion. The motion to dismiss a sed the June
3, 2020 hearing dealt only with section 905.27, and did not address t I declaratory
judgment claim. Moreover, in dismissing Count II, the Court's June 202 Order was limited to
holding that section 905.27 does not create an implied cau ion for the media. Ex. JI5.
Further, the comments by Chief Judge Marx during th in at are not memorialized in the \
June 8, 2020 Order are dicta and do not constitut • • * ia determination as to whether the State
Attorney had possession or custody of any in d jury materials.
The June 8, 2020 Order disIdle statutory claim in Count II cited Horowitz v.
Plantation Gen. Hosp. Ltd. P'sl 2d 176 (Fla. 2007), which sets forth the standards for
determining if a statute creates a ied cause of action. In Horowitz, the Florida Supreme Court
addressed whether a riva use of action against hospitals existed under medical practitioner
requirements o Florida Statutes § 458.320, and referenced the general principle that
"judges la t er `to construe an unambiguous statute in a way which would extend, modify,
or limit, i xpress terms or its reasonable and obvious implications," as such "would be an
abrogation of legislative power." (Emphasis in original).
While Horowitz may be relevant to an analysis of Count II on the issue of whether section
905.27 creates a private cause of action, Horowitz has no relevance to either the State Attorney's
place-marker motion or the Amended Motion, which solely addressed Count I. First, Count I-
18
EFTA02734976
unlike the previously dismissed Count II —is not a pure statutory claim seeking to assert a private
cause of action under 905.27, but it is a claim for declaratory relief based on the First Amendment,
the Court's inherent authority over grand juries to prevent and expose prosecutorial abuses as in
Marko, and section 905.27, which allows for release of grand jury materials in the furtherance of
justice. Second, Horowitz is not a sanctions case. Horowitz does not address whethe a plaintiff
should be subjected to sanctions if its claim to a private right of action under a stalelyultimately
fails. See Minto PBLH, LLC v. 1000 Friends of Florida, Inc., 228 So. 3d la. 4th DCA
2017), where the Court stated if that argument were taken to its log e e, "a losing party
would be subject to sanctions under section 57.105 every time rt faCfid that a statute or legal
document was unambiguous and that the losing party'sGi
the standard.
was incorrect." That is not
G. No OBLIGATION FOR FEE S BECAUSE TIIIRF IN No B %Sr. FOR
SANCTIONS.
Despite the State Attorney's i ony that he insisted on moving forward with his
Amended Motion to "get the t y e of their money back" for legal fees, he reluctantly Ladmitted on cross-examination dollars have not been spent on this lawsuit. Hrg. Tr. at
59:15-25; 63:21-64: 5. Fttu the outset, no fee obligations arose unless them was a Court order
awarding secti 5 sanctions. Ex. J05.7 The only way the State Attorney's counsel, Mr.
Wyler, w
sanctions er section 57.105, and thus no basis for attorney's fees.
aid fees was under a section 57.105 motion. However, there is no basis for
7 There is no need to address the amount of fees sought because the State Attorney is not entitled
to any fees under section 57.105. However, even if the Court were to disagree, the majority of the
fees sought are not recoverable under Florida law, as set forth in the Post's Bench Memorandum
Regarding Attorney Fee Objections, delivered to the Court on September 1, 2022, and attached
hereto as Exhibit C.
19
EFTA02734977
Put simply, section 57.105 is for egregious conduct. Nothing even close to that conduct
was presented by the State Attorney here.
CONCLUSION
Plaintiff, CA Florida Holdings, LLC, publisher of The Palm Beach Post, respectfully
requests that the Court: (i) deny State Attorney Dave Aronberg's November 9, 2020 Amended
Motion for Attorneys' Fees, with prejudice; (ii) decline to address State Attorney ronberg's
July 1, 2020 Motion for Attorneys' Fees, as it is not properly before the Co the alternative,
if the Court decides to address it, deny the July 1, 2020 Motion for Att with prejudice;
and (iii) and grant such other and further relief as the Court dee nec s or proper.
Auy
c )
submitted,
BERG TRAURIG, P.A.
rneys for CA Florida Holdings, LLC,
ublisher of The Palm Beach Post
/s/ Lauren Whetstone
LAUREN WHETSTONE
Florida Bar No. 45192
MARK F. BIDEAU
Florida Bar No. 564044
GREENBERG TRAURIG, P.A.
777 South Flagler Drive, Suite 300 East
West Palm Beach, FL 33401
Tel.: [Phone Redacted]
[Email Redacted]
[Email Redacted]
[Email Redacted]
thomasdegtlaw.com
[Email Redacted]
STEPHEN A. MENDELSOHN
Florida Bar No. 849324
GREENBERG TRAURIG, P.A.
401 East Las Olas Boulevard, Suite 2000
Fort Lauderdale, FL 33301
Tel.: [Phone Redacted]
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EFTA02734978
[Email Redacted]
[Email Redacted]
MICHAEL J. GRYGIEL
(Admitted Pro Hac Vice)
GREENBERG TRAURIG, LLP
54 State Street, 6th Floor
Albany, NY 12207
Tel.: [Phone Redacted]
grvizielmegtlaw.corn
NINA D. BOYAJIAN SA
(Admitted Pro Hac ••
GREENBERG TRAU
1840 Century P
Los Angeles, C 9 1 1 67
Tel.: 310 7
bo w.com
rive .com
CERTIFICAT
\
14\ICE
I HEREBY CERTIFY that on thi ay October, 2022, a true and correct copy of
the foregoing has been filed with the e Court using the State of Florida e-filing system,
C )which will send a notice of elec is ice for all parties of record herein.
uite 1900
Is/ Lauren Whetstone. Esq.
Lauren Whetstone, Esq.
21
EFTA02734979
Composite
Exhibit c;A"
(s.
EFTA02734980
Judge Luis Delgado
September 06, 2022
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 50-2019-CA-014681-XXXX-MB AG
CA FLORIDA HOLDINGS, LLC,
Publisher of the PALM BEACH POST,
Plaintiff,
vs.
DAVE ARONBERG, as State Attorney
of Palm Beach County, Florida;
SHARON R. BOCK, as Clerk and
Comptroller of Palm Beach Count
Florida,
Defendants.
RE:
Ad4tpAtIPT OF HEARING
OCEEDINGS
?s,
04Defendan D ve Aronberg's Amended Motion for
Attorneys Fees
A Cos
BEFORE:
270569
EN: Tuesday, September 6, 2022
1:42 p.m. - 4:53 p.m.
PALM BEACH COUNTY COURTHOUSE
205 North Dixie Highway
Courtroom 10D
West Palm Beach, Florida 33401
LUIS DELGADO, JR. , Circuit Judge
Stenographically reported by:
Lisa Begley, RPR, RMR
www.phippsreporting.com
([Phone Redacted]
EFTA02734981
Judge Luis Delgado
September 06, 2022
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APPEARANCES:
On behalf of the Plaintiff:
GREENBERG TRAURIG
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777 South Flagler Drive 3
Suite 300 East
4 West Palm Beach, Florida 31401
[Phone Redacted] 5
BY: LAUREN R. WHETSTONE. ESQ.
whetetOnelOgtlaw.com
MARK F. BIDEAU. ESQ.
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bideaumagtlaw.corn 8 GERARD BUITRAGO. ESQ.
buitragogegtlaw.cce: 9
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On behalf of Defendant, Dave Arenberg:
11 JACOB, SCHOLZ 6 WYLER, LLC
961687 Gateway Boulevard 12
Suite 2011 13 Fernandina Beach, Florida 32034
[Phone Redacted] 14
BY: DOUGLAS A. WYLER, ESQ.
dougajsvflorida.com
Also present: Dave Aronberg, State Attorney
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Defendant 17
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INDEX
Opening Statement
By Mr. Wyler
By Ms. Whetstone
WITNESS
DAVID ARONBERG, STATE A
7 Direct Examin
Cross Exam'
8 Redirect Ex
9 STEPHEN
Dire
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Ste
Wyler
by Mt. Bideau
on by Mr. Wyler
HP, SQ.
ion by Ms. Whetstone
Joint Exhibits I - 37
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Page 3
AGPAGE
4
23
43
63
94
98
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141
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Thereupon,
the foliating proceedings began at 1:42 p.m.:
TP18 CCURT: All right, please be seated.
All right, so we're here on the amended
=la: for attorneys' fees.
Let's announce appearances.
MS. WHITSTI0NE: Good after:XAaL Your Motor,
Lauren Whetstone. With re is Mark Bideau and
Gerard Buitrago and our paralegal, Jennifer
Throat Exam Greenberg Traurig on behalf of CA
Florida Holdings, the pub her of the Palm Beach
Post.
ME. C*12R: , Your Honor. My
GM'S Dcogl I'm here on behalf of
defendant,
EXHIBITS ENTERED IN EVIDENCE
State Attorney Cave
Honor.
Thank you very much. It's your
MR. WYLER: Thank you, Your Honor. May I
roach?
THE OTURT: Mods head vp and down.)
R. WYLER: Hi, again, Your Honor. Thank
you. May it please the Court. As you know, we're
here today on Pt. Aronberg's amended motion for
1 attorney's fees. It was filed on November 9th,
2 2020, in conjunction with his 57.105 demand that
3 was made to the plaintiffs on June 8th, 2020.
4 That demand letter that was sent to the
5 plaintiff's counsel was sent on the same day that
6 Judge Marx entered her order granting the
7 defendant's motion to dismiss Count 2 of this case
8 with prejudice. And that motion, that 57.105
9 demand letter asserted that the plaintiff's sole
10 remaining count for declaratory action had no
11 basis in fact or law pursuant to 57.105.
12 Their declaratory relief claim is rooted in
13 Chapter 905.27 Florida Statute that governs the
14 exceptions for the release of grand jury -- grand
15 jury materials.
16 In our 57.105 letter, we specifically told
17 the plaintiffs that, under 57.105(1)(a), their
18 declaratory relief claim is unsupported by the
19 material facts necessary to establish it and also,
20 =der 57.105(1) (b), that their declaratory relief
21 claim is unsupported by the application of the law
22 to those material facts:
23 There's a case, v. Bailynson, it's
24 found at 268 So.3d 762. It's a Fourth DCA case
25 from 2019.
Page 5
www.phippereporting.com
([Phone Redacted]
EFTA02734982
Judge Luis Delgado
September 06, 2022
1 THE OrET: Give me that cite one more
2 time.
3 MR. WIER: Yes, sir. It's IIIII v.
4 Bailynson, B-a-i-l-y-n-s-o-n, 268 So.3d 762. It's
5 a Fourth DCA 2019. That case says, The central
6 purpose of 57.105 Florida Statute is and always
7 has been to deter meritless filings and, thus,
B streamline the administration and the procedure of
9 the courts. Thus, the post-1999 version of the 57
10 -- 57.105 has expanded the circumstances where
11 fees should be awarded and the purpose is to defer
12 meritless filings.
13 57.105 -- The statute 57.105 provides the
14 following language authorizing the award of
15 attorneys' fees such as in the present litigation.
16 It says, spoon the Court's initiative or motion of
17 any party, the Wart shall award a reasonable
18 attorney's fee, including prejudgment interest, to
19 be paid to the prevailing party in equal mounts
20 by the losing party and the losing party's
21 attorney on any claim or defense at any tire
22 during a civil proceeding or action in which the
23 Court finds that the losing party or the losing
24 party's attorney knew or should have known that a
25 claim or defense, when initially presented to the
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Court or at any tine before trial, was not
supported by the material facts
establish the claim or defense, or
supported by the application of
to those material facts.'
So, notably, the st te includes a lot of
key words in there, but he
I'm focusing cn i
Here, t
obligation
filed tlye
ultimat
or
words that
d have boom.'
tiff had a due diligence
he law was when they
They should have known the
the case all along, and they
. the proper legal mechanism for
°heal the records that they were seeking.
Nonetheless, we've informed the plaintiff
multiple tints throughout this case that not --
that )t. Arcrterg is an improper party, not only
-- because not only is it impossible for him to
produce the requested records since he has no
possession, custody or control over the, but also
because the statutes that govern the disclosure of
grand jury records clearly and unambiguously do
not grant such authority or power to the state
attorney.
Another case for you is Trust Mortgage,
Page 6
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LLC, v. Ferlanti. That's found at 193 So.3d 997.
That's also a Fourth DCA case from 2016. And it
can guide the Court here. This case says that, in
determining an award of sanctions under
Section 57.105, the trial court's findings must be
based on substantial competent evidence and the
trial court must make an inquiry into what the
losing party knew or should have known daring the
fact establishment process both before and after
the suit was filed.
So, as to the 57.105(1)(a) c in,
Mr. Aronberg's position is per
should have known when t doi their
research that it was ibility, that he had
no access, custody • 1 these records,
but that fact une was drawn to that
fact by Judge in the June 3rd, 2020, motion
to dismiss he he made several statements
that plaintiff on notice, if they weren't
a
if it waald please the Wart, I would
read those onto the record. You can find
-- We've submitted a joint binder to you,
if you --
THE COURT: I have it here. Tell me where
I'm looking.
MR. NYLER: Yes, sir. If you look at J13,
that's the condensed version of the transcript.
You can find the full version if you look at J29,
and I can give you the IIIII stamp numbers.
THE @CURT: Tell me where to look, and I'll
look.
MR. NMER: Absolutely, Your Honor. Look
at stamp 1353, and that will start you --
THE CURT: Of what exhibit?
MR. )nnER: Okay, Exhibit 29 is the full
version. I thcur that might be easier for you
to read it. At 1353.
THE CUNT: You said J29.
MR. EYLER: Yeah, J29, and, if you look in
the lower left corner, there's a number that
says CA, slash, Arenberg, and you'll see the MN
static numbers.
THE COURT: What's the number?
MR. Mgt: 1353.
CURT: Go ahead.
MR. MISR: Thank you, Your Haar. I'm
going to go throut this transcript, and I'll
direct you to the actual page number of the
transcript itself, okay? Page 3, lines 18 -- 4
Page 8
Page 9
www.phippsreporting.com
([Phone Redacted]
EFTA02734983
Judge Luis Delgado
September 06, 2022
Page 10
1 through 1. "Mot for nothing" -- This is all Judge
2 Marx. 'Not for nothing, I think we all know that
3 they don't have control and custody of the
4 records.'
5 Page 5, lines 17 through 19. "I think we
6 can all agree that the state attorney doesn't have
7 these records."
B Page 8, lire 4. "I'm asking you, how are
9 the clerk and the state attorney the proper
10 defendants?"
11 Page 8, line 8. "I'm puzzled by the
12 procedural posturing of this case naming the state
13 attorney, and, you know, I'm further stymied by
14 the fact that you allege in your complaint that
15 they have, particularly David Arenberg the state
16 attorney, that he has these records."
17 Page 8, line 18. 'dray, let's run this all
18 the way out. Let's say you win and you get a
19 judgment against the state attorney, Dave
20 Arenberg. What's he supposed to do with it? He
21 can't release the grand jury testimony. He has no
22 authority whatsoever to do that."
23 Page 10, line 21. 'And the only thing
24 we're here today about is wty should the clerk and
25 the state attorney have to defend a civil action
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when it's an impossibility of performance
even -- If you were to win and get a
against then, they cannot give you
have.'
Page 11, line 12. 'I'm si
should these two entities
lawsuit when, even down t
can't give you doct have?"
Page 16, 2. 'And, you know, really,
I want to for me as to this:
Let's t way dam the road. You win.
You get against the clerk and the state
a know there's other reasxs why you
might filed it this way, but I'm just simply
puzzled because I do hear what the clerk and the
state attorney are saying, and that is,
performance is impossible. They don't have the
records and cannot, absolutely. There's not even
an inch of wiggle roan that they could release the
records eve: if you got a judgment. It is solely
a determination for the Court. I frankly think
you know there's ways to get your records.
There's ways to get confidential records, but it
isn't by suing the state attorney and the clerk."
Page 17, line 6. 'Even assuming. arguendo,
n9.
to defend this
you win, they
why
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that they have the records, we know they don't.
You were to -- If you were to get a judgnent
against then, how wild you expect then to
perform?'
And then finally, on page 17, line 23.
'that do you seen? ithat do you mean? They're not
trying to block it? They're saying that, despite
the fact -- let's just talk about the clerk
because we all lave the state attorney doesn't
have it.'
I would ask the Court to ent the hearing
transcript found at J29, 135 as Defense's
Exhibit No. 1.
THE CCORT: k
MS. klETSTCNE oint exhibits are
in evidence,
MR. re in evidence, but I
don't know if ed to nark them for each
per I don't need to do that, then I'll
that.
These joint exhibits have all
pulated to?
MR. VILER: Yes.
THE COURT: NO need then.
MR. WIER: Then I'll leave it alone.
Page 13
1 Thank you, Your Honor.
2 These statements, along with the upcoming
3 examination of Mr. Arnaberg and Mr. Mendelsohn,
4 along with everything that's presented to the
5 Court, it shahs that these sanctions are
6 justified, and there is no arguable basis in fact
7 or law the way these statutes are written that
8 Mr. Arenberg could ever provide the requested
9 materials that he was sued for.
10 As to the 57.105(1) b) argument,
11 Mr. Arenberg's position here is that the
12 newspaper, plaintiffs and their attorneys, they
13 should have also krIcrei at the beginning when they
14 were doing their research that those statutes
15 precluded Mr. Aluierg from actually providing
16 these records. That's what they sued for. They
17 asked for Mr. Arenberg to provide these records so
18 that they could then be disclosed to the public.
19 But chapter -- or, Statute 905.27 states this:
20 And this -- this argument has been presented in
21 everything that we've said to the newspaper.
22 'When such disclosure is ordered by a Court
23 pursuant to subsection Cl) for use in a civil
24 case, it ray be disclosed to all parties to the
25 case and to their attorneys and by the latter to
www.phippsreporting.com
([Phone Redacted]
EFTA02734984
Judge Luis Delgado
September 06, 2022
Page 14
1 their legal acAmmiates and employees. However,
2 the grand jury testimony afforded such persons by
3 the Cant can only be used in the defense or
4 prosecution of the civil or criminal case and for
5 no other purpose whatsoever."
6 That arganont was ultimately utilized in
7 Judge Hafele's final judgtent in favor of the
B clerk because, an top of other things, the
9 plaintiff admitted that they weren't seeking to
10 use these reoposted records in an underlying civil
11 or criminal case. They wanted to use it to -- for
12 public disclosure.
13 Chapter 905.17 of the Florida statutes also
14 applies here. This has also been made evident and
15 very clear to the plaintiff. That statute says,
16 in pertinent part, "The notes" -- and this is all
17 regarding the grand jury materials -- "The notes,
18 records and transcriptions are confidential and
19 exempt from the provisions of Chapter 119.07 and
20 Section 24(a), Article 1 of the State Constitution
21 and shall be released by the clerk only on a
22 request by a grand jury for use by the grand jury
23 or an an order of the Own pursuant to
24 Chapter 905.27."
25 So, like I said, these legal arguments have
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been presented to plaintiff and its lawyer
several times. It was in the 57.105
letter, but plaintiff dropped Mr.
the case too late. The statute
effect. There's a 21-day safe - sion in
that statute. And the t -'veny and evidence
today will show that a rot ttorneys' fees
was filed appropr ly wit hat statute, and
then following Mr. Aronberg was dropped fran
the case. that, amended notion for
filed.
an argument having to deal
ng of when our areded motion for
atto ' fees was filed. They claim that we
don't comply with the 21-day safe -harbor
provision, and they use this case of Lago v Kane,
Lago v Kane By Design. It's K-a -m, like Mary,
K-a -m-e By Design, LLC. That's found at 120 So.3d
73. It's also a Fourth DCA case from 2013.
So that case held that, if a party files a
subsequent or amended motion for sanctions under
Section 57.105 and raises an argament that was not
raised in the original nodal for Section 57.105
sanctions, then the subsequent motion must
independently comply with the 21-day safe -harbor
Page 5
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provision.
Okay, but the facts are different, totally
different.
See, in the [ago case, the party who was
served with the 57.105 demand never withdrew from
the case. They stayed in the case to the end.
The person that served the original 57.105 in
sago, after serving it, served a seccad one, and
when they served the second 57.105 -- well, they
didn't serve a second 57.105 demand letter. They
fees, an
ttout
letter
That didn't
filed a second notion for atto
amended notion for attorneys
providing an additional
before they filed the
happen in this case
In this
-- our origi
Hoverter 9th,
Mr.
notion.
our amended motion
for attorneys' fees on
then they dropped
from the case on October 21st --
ed I'm sorry. I apologize, Your
iled our original notion for
' fees on July 1, 2020. I apologize.
dropped Mr. Araterg fran the case an
ober 21, 2020, and then we filed our amended
motion for attorneys' fees on Hoverter 9th, 2020.
Page 17
1 So the significant thing about this, Your
2 Moro:, is the 21-clay safe -harbor provision is
3 there to provide the -- provide an opportunity to
4 reevaluate your position and change your position
5 and withdraw your case based on the demands in the
6 57.105.
7 There was no opportunity for the plaintiff
8 to reevaluate and change their position. They had
9 already rade their mind up. They had already
10 dropped Mr. Arcrberg free the case. So, by asking
11 or saying that we failed to provide the 2I -day
12 safe -harbor provision, that is misleading, Your
13 Honor, because there was no way they could change
14 their position with another demand letter sent to
15 them. They had already made their decision and
16 dropped Mr. Aiumborg from the case. It was
17 impossible for them to change their position. So
18 he had no obligation to serve his amended notion
19 prior to filing with the Court because he was
20 already dropped, and a previous motion for
21 attorneys' fees was already filed.
22 Another interesting part of that Lago case
23 is that, in that case, the Court did find that the
24 wended motion was filed improperly because they
25 were still in the case, but, instead, the Court
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Judge Luis Delgado
September 06, 2022
Page le
1 picked up the originally-filed motion for
2 attorneys' fees in that case. And we would ask
3 Your Honor, in the alternative, should you find
4 that, that you would rule on our original notion
5 for attorneys' fees if it came down to it because,
6 in the end, the arguments are the sane, and the
7 real diffetcue in the filing of the amended
B motion for attorneys' fees is that it included the
9 final tabulation of my firm's fees, as well as
10 affidavits -- my affidavit of reasonable -- of
11 fees and an affidavit of reasonable fees from our
12 expert.
13 The ocher interesting thing here, the other
14 argument that you'll hear plaintiff make is that
15 Mr. Aronberg was a proper party to the case. Now,
16 again, the clerk is the person -- the only entity
17 that has authority to provide these records under
18 statute, and that alone should be enough to show
19 that Mr. Arenberg is not a proper party defendant.
20 But Judge Hafele's final judgment actually helps
21 out this because Judge Hafele's final judgment
22 actually instructed plaintiff en the right way to
23 go about [tying to get the records that they were
24 seeking. It points out that they followed --
25 failed to follow the right procedure.
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In that final judgment, Judge Ha ele
it clear that all that they had to do
follow the Rules of Judicial
Rule 2.42 and file a motion seek
the underlying case, and then se
that case and anybody.
it.
That underl case ilk. State of Florida
vs. Jeffrey It's case number
2006-CF-94 Mr. enberg rim his office is a
party t So he is an improper party.
They ne to sue him to get these records.
a big difference between suing the
state Betorrey to get records versus filing a
motion in a case that was already open.
Okay, now they make one other defense here
under 57.105(3)(a), but that does not apply here
in any sense, and I'll explain to you why. First,
let me read you the statutory language.
This is 57.105(31(a), and it says,
"Notwithstanding subsections (1) and (2), =nary
sanctions may not be awarded; (a), Under
paragraph (1)(b) if the Court determines that the
claim or defense was initially presented to the
Court as a good faith argument for the extension,
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Page 20
modification or reversal of existing law or the
establishment of new law, as it applied to the
material facts, and with a reasonable expectation
of success.'
So here, the plaintiff tries to twist the
language of that statute in two different ways to
suit its argument. First, they entirely failed to
recognize that tht 57.103(a) (sic) defense applies
only to claims made under 57.105(1)(b), and that
has to do with the law not being correct as
applied to the facts to establish he case.
The law here cannot be to the case
in such a way that wouldAt the claim as I
went through with t
is the only scenari
making a legal
where you can
So there is no
es with you. That
1) ), when you're
a factual argment,
with a good faith defense.
ith defense at all that
aPP1 factual angrent that it is
1 r Mr. Arenberg to provide these
that he has no access, custedy or
over them and he never has. That is
by this defense of theirs.
But the interesting thing is that this
defense fails in another way, too, because, if you
Page 719 Page 21
I recall, their only remaining count is for
2 declaratory relief, and when declaratory relief is
3 asked of the Curt, that is an asked for
4 interpretation, and admittedly so by the
5 plaintiff. Their -- They state that Where did
6 I just put it? They argue that their declaratory
7 relief claim was presented to the Cant as a,
8 quote, good faith argarent for the interpretation
9 of existing law or at least the establishment of a
10 new law. But that doesn't work here because, if
11 you go back to the statutory language, the
12 statute, it's only for the extension, modification
13 or reversal of existing law. It doesn't say
14 anything about interpretaticns.
15 They did not ask for the extension of
16 57.105 -- or, of 905.27. They didn't ask for it
17 to be modified. They didn't ask for it to be
18 reversed. They asked the Cain to interpret it
19 and tell them whether or not they had the ability
20 to have the grand jury records disclosed to the..
21 That is totally -- That is an interpretation that
22 they asked for. The Court only got to address
23 that as to the clerk because, again, we were
24 dropped before then.
25 So the other part of that statute talks
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EFTA02734986
Judge Luis Delgado
September 06, 2022
Page 22
1 about -- it says, or creation of a rex law, okay?
2 They weren't asking to create a new law with their
3 declaratory relief claim. 'The only place where
4 they were trying to create a new statutory cause
5 of action was in their Camt 2 that was dismissed
6 with prejudice by Judge Marx and is not at all a
7 part of It. Armeerg's 57.105 demand.
B The 57.105 demand only regards the claim
9 for declaratory relief. So the defense under
10 57.105(3)(a) fails as to both of Mr. Arcnberg's
11 57.105 claims.
12 I would just like to reiterate to the Court
13 that the clerk is in actual possession of the
14 requested records, is the only entity that is
15 statutorily authorized to release grand jury
16 records pursuant to a Court order, and despite
17 plaintiff's arganents to the contrary, the record
18 evidence will slow that plaintiff and its lawyers
19 knew or should have known at the time they were
20 served -- at least at the tire they were served
21 with the 57.105 demand that the declaratory relief
22 claim fails under 57.105(1)(a) because it is
23 unsupported by the material facts necessary to
24 establish it, and under 57.105(1)(b) because it is
25 unsupported by the application of the law to the
Page 3
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material facts.
Plaintiff and its attorneys have
themselves to sanctions under 57.1
Mr. Amnberg requests such relie
THE CCURT: Thank you.
YR. WLER: Thank YW. You-Honor.
ch, Your Honor?
TIE 03URT:
M. And if I may, I'll flip
over this Honor should have a copy
in your b'
Is that the -- Yes, give re --
1 ually...
his it?
MS. WHETSTONE: Yes.
TIE COURT: Whenever you're ready.
it please the Court.
The Post filed a complaint seeking access co
materials from Jeffrey Epstein's grand jury
investigation which was run by the Palm Beach
County's former state attorney in 2006.
The Post felt a duty to inform the public
as to how this sexual predator got the deal of the
century and got off with such leniency. It is a
matter of genuine public interest and concern as
Page 24
1 this Court has noted.
2 The Post rated two defendants, ruiner one,
3 the clerk of Omit as the public office tasked
4 with custody of grand jury records and, =doer
5 two, the state attorney's office because it
6 actually ran the investigation and because it is
7 the public office tasked with protecting grand
8 jury secrecy.
9 The state attorney's office says they
10 should have never teen na-redapart Of course
11 they had to be rated a party. ly were they
12 the public office that investigation
13 and presumably had passe ce in documents
14 at sore tine, but, no antly, they're the
15 public office with authority to
16 prevent the c ' mg grand jury
17 Coca:lents.
18 Your H rd in the state
19 at opening that this is about
20 r the state attorney had the
21 docjtrgt whether he had possession or custody of
s, but it's not just gout that. It
c just akcut custody. And it's -- We'll get
to this, but the inportant point is, the state
attorney's office has as its task the protection
Page 25
1 of the grand jury system.
2 And it's important to remember, we're here
3 today on a motion for 57.105 sanctions relating to
4 the declaratory relief claim, not the statutory
5 claim. We heard reading from the transcript
6 before Judge Marx relating to the motion to
7 dismiss Count 2, which was on a statutory claim
8 under Florida Statute 905.27.
9 Of course, we are here on the declaratory
10 reliefclaimthatalsoinvolvedconstitutional law
11 and First Menthe-It law, not just Florida
12 statutory law.
13 So, starting off, we went as to the merits,
14 but you don't even need to get there, Your Honor.
15 There are two ncccurable, case dispositive
16 jurisdictional issues which require denial of the
17 motion without any consideration of underlying
18 facts. And this is not just an argument. These
19 are jurisdictional defects.
20 Number me, the Court lacks jurisdiction
21 because the wended motion for sanctions was filed
22 after the state attorney was dismissed as a party.
23 And I'll indicate -- Hopefully you can hear me,
24 but here is where the state attorney filed his
25 mended maim for fees. It was November 2020.
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EFTA02734987
Judge Luis Delgado
September 06, 2022
Page 26
1 And we dismissed -- the Post had dismissed him as
2 a party 19 days before, on October 21st, 2020.
3 The case law is clear that the Court has no
4 jurisdiction over a motion for sanctions after a
5 voluntary dismissal, like the motion here. And
6 this is case law, including Sidlcsca vs. Olympus,
7 and that is in Authorities tab -- the Authorities
B binder that Your donor has at tab 26, and I'll
9 read the case cite for the record. 276 So.3d 987.
10 It's a Third DCA 2019 case.
11 Number two, the Court also lacks
12 jurisdiction because the amended motion, which is
13 the only motion we are here on, violated 57.105
14 subsection (4)'s safe -harbor notice provision
15 which requires a motion for fees be served at
16 least 21 days before its filed.
17 It is (undisputed that the state attorney
18 never served a copy of the amended motion for
19 sanctions at any time before filing it on Hoverter
20 9th. I believe Mr. Wyler also mentioned that and
21 agreed with that in his opening. As a result, the
22 amended notion cannot be considered. The state
23 attorney tries to rely on a prior, what he calls,
24 quote, unquote, place -marker notion for fees that
25 was served cn June 8th, 2020, in an attempt to get
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around the safe-harbor requirement of 57.1
cannot do so. First, the statute is
of the court law, so it rust be s
construed.
Yore importantly, the case , and
this is logo vs. Kam, t law says that the
initial place -marker moti sufficient to
comply with 57.10
attended motion
21-day saf
again,
binder
use, they filed an
new arguments, then that
was required anew. And,
this is tab 14 in Your Honor's
must independently comply with
fe harbor.
state attorney tries to argue that,
because we dismissed him prior to him filing the
amended motion for fees, he's no longer required
to cceply with the 21-day safe harbor, but the
dismissal is exactly what the 21-day safe -harbor
provision is aimed at encouraging from parties in
litigation.
There ;as nothing to ask us to withdraw
with a 21-day notice because it had already been
withdrawn, so 57.105 doesn't even apply to the
situation here, and that's actually a situation
that came up in the Ferere, F-e -r -e -r -e. vs. Shore
Page )27
1 case, and that's tab 6 in Your Honor's binder and
2 that's a Fourth DCA case. And in that case, the
3 Court said that 57.105 subsection (1) was not
4 applicable where there was no way for plaintiff's
5 counsel to withdraw an allegation after a
6 post -trial motion. So if 57.105 -- the
7 safe -harbor notice was not available, then 57.105
8 doesn't apply at all.
9 And, here, it's obvious that the amended
10 motion made new arguments not in t first
11 place -marker motion. And we're so ng to pull up
12 the first place -marker moti amended
13 motion to compare than, me lee exhibits,
14 Joint Exhibits 14 and
15 So, first, he he first
16 place -marker 14, it's -- the
17 motion itself There's an enclosure
18 letter that c it, and it's two pages. So
19 thr local. The motion itself says nothing
20 going to prevail, and this is your
21 tSCe,. want fees.
the enclosure letter says, along the
I believe Mr. Wyler said this in his
that the defendant Arenberg nor the
office of the state attorney is in custody or
Page 29
1 control of the 2006 grand jury materials sought
2 therein.
3 However, the first motion completely failed
4 to address the main reason why the state attorney
5 was a party to the lawsuit, because it could
6 object to the clerk providing the grand jury
7 records.
8 So now let's pull up Exhibit 25, which is
9 the amended motion. And, Your Honor, here, so you
10 can have an idea, here's the first motion. It's
11 Joint Exhibit 14. Here's the amended motion.
12 This is three pages. This is 59 pages with
13 exhibits, 11 pages of a motion. Ard one page of a
14 motion. So clearly there's new stuff in the
15 amend calm for fees. But Mr. Wyler said they
16 said the same arguments. That's not -- That's net
17 true.
18 The wended motion clearly makes new
19 arguments not in the first place -marker motion.
20 It also references new documents, like the state
21 attorney's ((option for smeary judgment and
22 Mr. Arenberg's affidavit, both which were filed in
23 August of 2020. So here (indicating).
24 Importantly, the amended motion also raises
25 new positions. Just as an example -- and. Gerard,
Page 28
www.phippereporting.com
([Phone Redacted]
EFTA02734988
Judge Luis Delgado
September 06, 2022
Page 30
1 if you could pull up paragraph 20 of the amended
2 motion -- it says, "The state attorney has no
3 objection to the clerk producing and disclosing
4 the requested materials should the Court grant an
5 order to that effect.• And then in paragraph 25
6 it says, "Likewise, the state attorney has no
7 objection and never has had any objection to the
B clerk releasing the records sought by the
9 plaintiff."
10 That's not true, though. M you will see
11 in the evidence, the position that the state
12 attorney had, quote, no objection, or, quote,
13 never had any objection to the clerk producing
14 grand jury materials was new, and you'll hear from
15 attorney Suephen Mendelsohn that
16 this is exactly the position t:•at the Post was
17 trying to get and Mr. Mendelsohn was trying to get
18 from the state attorney.
19 And you'll hear, in a June 23rd, 2020,
20 letter Mr. Mendelsohn wrote to the state attorney,
21 he said the state attorney is named here because
22 they are a party that is tasked with protection of
23 the grand jury system. You have the right to
24 object to the release of grand jury materials.
25 That's why you're here. And, once we had this
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notice right here of saying they don'
dismissed him.
So he first said on the rem
October 14th, 1 have no objecti
production of the Epstein grand
We dismissed him October
So, to close out on
argil:snit, the
and cited new
at the ti
the
the str
there
outright.
Your Honor, even if the Court -- sorry --
even if the state attorney could overate the
jurisdictional defects, the evidence will show
there's absolutely no basis for sanctions under
the statute, and let's turn to the statute nos and
the standard under it as applied by the case law.
And this will be tab 18.
71€ Calker: Are you talking to me, or --
MS. hEETSPdmIE: Sorry, I was indicating to
Gerard.
not
cb
rials.
sdictional
aised new argtments
evidence that did not exist
place -marker motion. So
had independently complied with
safe -harbor requirement, and the
failed to serve it before filing;
the amended motion must be denied
Page 351
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Page 32
And, Your Honor, here's the standard for
sanctions under Florida Statute 57.105. The
statute is behind it. read from that.
And this is a case that interprets -- interprets
this high standard, and this is the same -- I note
that IIIII vs. Bailynson -- I'm going to botch
that name, sorry, but the case that Mr. Wyler read
from has the same exact standard as to how you --
you interpret whether somebody has met the
requirements of 57.105. So this is a high burden.
This is not a who won. This is n4 a prevailing
party standard.
They have the •irr;•Chat the
claim was so frivol• .•. . ..id of merit both on
the facts and the 1 as completely
untenable, and the lain w•as not
frivolous, n because they admitted in
their answer ry claim --
rand, if you could pull up the
admitted in their answer to this very
t a good faith dispute exists between the
es. And here you're seeing -- Your Honor is
ing a comparison of Exhibit 9, which is the
mended complaint, this count for declaratory
Page 33
1 relief, and Ii5dlibit 10, which is the state
2 attorney's answer. And it says, "Mt Palm Beach
3 Post has sought from defendants, and defendants --
4 but defendants have refused to provide access to
5 the testimony, minutes and other evidence
6 presented in 2006 to the Palm Beach Canty grand
7 jury. Indeed, defendants have each filed motions
8 to dismiss the complaint and the relief it sought
9 weer Florida Statute Section 905.27(1).
10 Accordingly, a goal faith dispute exists between
11 the parties.' And, in response, the state
12 attorney simply said, 'Admitted."
13 By that admission, they lose this motion
14 for sanctions. They cannot now argue this claim
15 was without merit. And, in addition, we will go
16 through the evidence that shows the Post and
17 Greenberg Traurig acted only in good faith and
18 with thoughtful deliberation and that this was not
19 a frivolous claim by any means.
20 So backing up a bit and to what we believe
21 the evidence will show. After Epstein's arrest
22 here in Palm Beach Canty in 2005, the Post began
23 an investigation into Epstein and then what
24 happened with the prosecution in 2006, haw he got
25 this sweetheart deal from the former state
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Judge Luis Delgado
September 06, 2022
Page 34
1 attorney, to inform the public what went wrong.
2 The Post made a number of public records
3 requests. No lurk. The limited dccurents they
4 received shed no light on hcw Epstein got off with
5 such leniency.
6 So, in the sumer of 2019 -- we again have
7 this timeline -- after years of investigation on
B Epstein, the Post brought in a team at Greenberg
9 Traurig, including Stephen Mendelsohn here who you
10 will hear Iran today, and other experienced
11 attorneys in First Arendrent and constitutional
12 law and criminal law.
13 The Poet and its attorneys spent months
14 researching and determining how do we get these
15 records. And you'll see the first box is from
16 July -- July 2019 through Mk:wester 2019, research
17 and -- legal research and due diligence regarding
18 what claims to bring and how. You will hear that
19 Mr. merdelsam tried contacting the state
20 attorney's office and requesting what was missing
21 from the public records requests.
22 And if you want to pull up Dchibit 1.
23 Exhibit 1 is an ample of such, and it has
24 a letter fran Mr. Mendelsohn that you'll hear
25 about "Mere he requests specific documents. And
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you will hear that Mr. Mendelsohn was not
attorney to write the state attorney's
addition to the Post. You will
Mr. Mendelscisn's specific reco the
state attorney's office went tea and you
will hear Iran ar4 the Poet that
the Post was left with no i ion. So the
Post filed this 1 t see access to grand
jury materials two defendants, the clerk
and the st
attorney was a necessary
party "tom , here. I believe I've gone over
ick1y, maker one, the state attorney
ran - the grand jury investigation in
2006. At some point, the state attorney's office
had to have records. But, number two, core
isportantly, as the public official with
responsibility and control over the grand jury
system, the state attorney had to be named. As
the public office with that control, the state
attorney had the power to object to the clerk
producing records. And this is something that the
state attorney has never refuted or even
addressed, and that goes hand in hard with number
two, that the state attorney also had the ability
Page 36
to request access to records from the clerk. This
2 was not on a whim, rot to harass and certainly not
3 frivolous.
4 In doing all this background research, you
5 will hear that Mr. Mendelsohn care across Fourth
6 DM and federal case law supporting the conclusion
7 that the state attorney was a necessary party.
8 Mr. Mendelsohn provided the state attorney with
9 that case law and explained what we needed from
10 the state attorney in this case. We needed the
11 state attorney to represent that would not
12 object to the release of gr terials by
13 the clerk if ordered by ignored
14 that request.
15 You will hear
16 rbdinsit 16 -- 3rd, 2020, letter he
17 sent to the s rney in resper.se to the
18 state attorney -marker =jai for fees that
19 was June. And, in this letter dated
20 J . Mendelsohn set forth three reasons
21 e attorney was pared as a party.
r one, custody; number two, they had
to make argfl:nts against release of
and jury materials; =her three, [here was
nothing that prohibits the state attorney from
5 Page 37
1 requesting copies of the clerk during and after
2 the close of criminal prosecution.
3 So, as Mr. Fandelsoim says in this letter,
4 even if the state attorney's office did not have
5 possession or custody of the grand jury materials,
6 that did not end the need for his office to be a
7 party to the declaratory relief claim. The state
8 attorney still had the right to object to the
9 clerk producing records. fiat's exactly why we
10 included them in the case.
11 You'll hear they previously did oppose
12 release by filing a motion to dismiss -- this is
13 Cast 2, I'm sorry, the statutory count and
14 then, by filing the answer to Count 1 admitting
15 that a good faith dispute exists as to this very
16 claim.
17 So in the timeline, for months after
18 Mr. Mendelsohn's letter, they -- they refused to
19 respond, and we also reminded than on October 2nd,
20 2020, in a later filing, what we needed. klut we
21 from the state attorney to release hin fran
22 this case was that he would not object to the
23 clerk's release of materials, and this was in our
24 reply -- sorry -- response to the first
25 place-marker motion for fees, and that was
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([Phone Redacted]
EFTA02734990
Judge Luis Delgado
September 06, 2022
1 Exhibit 20.
2 In that exhibit -- or, in that document,
3 Mr. Mendelsohn again raises the In re Grand Jury
4 case that you just saw in the June 23rd letter.
5 It was not until after this, on October 14th,
6 2020, that the state attorney's office finally
7 stated in a court filing they weld not object to
8 the clerk's proobction if ordered, and he todc a
9 position of neutrality. Days later, we dismissed
10 the state attorney.
11 It's important to note the dismissal of the
12 state attorney does not rake him a prevailing
13 party, not even under the 57.105 sanctions
14 standard, which is much higher than a prevailing
15 party standard, but even under a regular
16 prevailing party standard, the state attorney is
17 not a prevailing party here. Just because a
18 plaintiff voluntarily dismisses a defendant does
19 not make a defendant a prevailing party. Where a
20 plaintiff gets something or a carpranise out of
21 litigation, a dismissal becomes an appropriate
22 course of action as a result, then neither party
23 is the prevailing party for purposes of
24 contractual attorneys' fees. Aral that's pursuant
25 to the Kelly vs. Bankunited case that is -- it
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should be in tab 39 of Your Honor's Author
binder. We sent it included in the
TIE CCURT: I think I --
YS. METSTCNE: It should
Thursday, but --
THE MUST: I got i
YS. hWtSitf€: As
purpose of 57.105 to det
judicial syst
litigation
atto
atto
even said, the
misuse of the
o discourage needless
declare the state
party and entitled to
these facts would be
t goal.
n, yaa'll hear from Mx. Mendelsohn that
the Poet dismissed the state attorney only after
it got what it needed from him, changing his
opposition to release of grand jury records to
getting his affirmative statement that his office
did not object. And, Your Hoper, the cases here
-- sorry -- the Court's rulings here actually
support this finding of no basis for sanctions
even further.
With regard to -- We heard a lot from the
transcript before Judge Man from the motion to
dismiss Cant 2. First, that was with regard to a
Peg e 38 Page 40
1 notion to dismiss Can 2, not the count we're on
2 here today, which is Count 1 for declaratory
3 relief.
4 It's important to note that Count 1 for
5 declaratory relief involves issues of First
6 A:nen:bent and constitutimal law, not just that
7 Florida Statute 905.27.
8 In number two, respectfully, what -- what
9 Judge Marx said during a hearing is rot evidence
10 as to whether the state attorney actually has
11 custody or control of records. So we heard her
12 statements on the record but about
13 whether the state atto or di not have
14 custody of the he did say in his
15 filings he does mit t.ye t or control of the
16 documents, but not just here about
17 his own oust or trol; we're here about his
18 right as the s orney to object to the clerk
19 rel jury records.
20 Judge Marx entered an order on
21 &sing Count 2, that was a limited
whether there was a private cause of
on under that statute.
In addition, there was Judge Hafele's final
judgment that was Exhibit 30 in the binder, and
Page J59 Page 41
1 Judge Hafele, wren he entered the final judgment,
2 that was as to the sane claim that's at issue
3 here, the declaratory relief claim as it remained
4 against the clerk, because yeu'll recall the state
5 attorney had already been dismissed as a party
6 once they said they had no objection to the clerk
7 releasing grand jury materials.
8 In the final judgment, Judge Hafele noted
9 this was a case of first impression involving
10 issues of genuine public concern. The arlrents
11 by the Post's attorneys in support of the
12 declaratory relief claim ware strong, sincere,
13 palatable and persuasive. He camended everyone
14 for their hard work. This is the opposite of a
15 frivolous claim. And, while the (but ultimately
16 did not rule in the Post's favor for declaratory
17 relief as to the clerk, we respectfully disagree,
18 and that decision is currently on appeal. But,
19 more importantly, that is not the standard for
20 57.105. Again, it is not a prevailing party
21 standard.
22 They have not met the high burden for
23 sanctions to prove that the fact -- the claim was
24 so frivolous or so devoid of merit under both the
25 facts and the law as to be completely untenable,
www.phippsreporting.com
([Phone Redacted]
EFTA02734991
Judge Luis Delgado
September 06, 2022
1 and, at the very least, this is a case -- in this
2 case of first impression, the claim for
3 declaratory relief was a good faith argument for
4 extension of the law. And, according to
5 57.105(1)(a) sanctions cannot be awarded.
6 A reminder here, too, that it was not just
7 the statutory -- the Florida statute at issue.
B It's constitutional and First imminent law at
9 issue in the declaratory relief claim.
10 Finally, it's worth noting that, if there
11 are no sanctions imposed, there are no fees to be
12 paid by the state attorney's office, by
13 Mr. Arcaberg personally or by taxpayers, by
14 anybody.
15 Yr. Miler, who represents state attorneys
16 across the state of Florida, had a contingency
17 agteerent with the state of Florida in this case
18 -- sorry -- state attorney in this case and, from
19 the outset, no fee obligations arose unless there
20 was a Court order awarding fees. And that's
21 Exhibit 5 in the joint exhibit binder. So the
22 only way they were going to get fees was under a
23 57.105 action. However, there has never been any
24 basis for 57.105 sanctions.
25 In closing, Your Honor, 57.105 is reserved
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for egregious conduct. There's
remotely close to that ccthc;
The motion must be
res1a.tfully requests t
motion for sanctions in
112u9c you,
TIC COURT:
calling?
Honor.
witnesses are you
Page 42
Page 3
here.
Post
the amended
ety.
Just one. Mr. Arenberg.
All right.
Do you solemnly swear or affirm
A
iL-L th?
ruth, the whole truth and nothing tut at
icknce ycu are about to give will be
ThIT WITNESS: I do.
Thereupon,
DAVID AROMERG, STATE ATTORTEY,
having been duly sworn by the Clerk of the Court,
rewrurded and testified as follows:
DIRECT EXAMIMATICDI
BY MR. hYnl_:
Q. Good afternoon, It. Arenberg.
Will you please introduce yourself to the
Court and tell us how lcmg you've held your position.
A. Good afternoon.
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Page 44
I'm David Arenberg. I Go by Dave. And
I've been state attorney since I was elected in 2012.
Q. Thank you. We're here today on your
amended motion for attorneys' fees filed November 9,
2020, against the plaintiff, correct?
A. Correct.
Q. And did you engage my law firm,
Scholz L Tyler, to defend you in this action?
A. Yes.
Q. I'm going to thew you our Joint Titbit 5.
Do you recognize this as a copy o fin's engagement
letter with your office s Howard?
A. Yes.
4.
BY
Thank /yW~
MR. CO AC ZPvExhibit 5, Your Honor,
cur fi t letter, contingency fee
Thank you.
ler. Arenberg, have you reviewed or are you
iar with the pleadings and filings
with the Court in this hearing?
A. I am.
Q. So then you're familiar with the
newspaper's original motions and complaint filed against
1 you on Bkrtaiber 14th, 2019, and then the amended
2 complaint filed January 17, 2020?
3 A. Yes.
4 Q. And what has the newspaper sued you for?
5 A. They sued me to obtain the Jrufrey Epstein
6 grand jury ¤ts.
7 Q. Did they sue to just obtain them, or to
8 also produce the and provide them to them?
9 A. They wanted re to produce them and to give
10 it -- give those doe is to them.
11 Q. And do you know what they wanted to do with
12 those documents once they got them?
13 A. They wanted to publish the documents.
14 Q. Okay. And do you have possession, custody
15 or control of those requested grand jury documents?
16 A. No. I've never had possession, custody or
17 control of those dm-melts.
18 Q. And, by control of those documents, do you
19 Mean that you couldn't -- you have no power to release
20 then if you had then?
21 A. I have no power to releacw these documents.
22 I don't have tiler. never had them. They knew I've
23 never had them.
24 Q. But, in their complaint, didn't they allege
25 that you and your office are, quote, in possession of the
www.phippereporting.com
([Phone Redacted]
EFTA02734992
Judge Luis Delgado
September 06, 2022
Peg e 46
1 documents that are the subject of this actim7
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12 BY MR. AMER:
13 Q. It. Arenberg, are you familiar with the
14 newspaper's allegation in their complaint that you,
15 quote, have denied to the Palm Beach Post and to the
16 public at large the grand jury materials sought to be
17 disclosed?
18 A. I am.
19 Q. Did you ever deny the newspaper those
20 requested materials?
21 A. Pram the beginning, we informed the
22 newspaper that I've never had these documents. In our
23 notion to dismiss, we had two argaments. The first one,
24 the very first one was that we do not possess, have
25 custody or control of these documents.
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A. That's this whole case. It's whether I had
possession, custody or control of these documents.
That's wiry they sued me and my office. AndInever had
possession, custody or control of these documents.
Q. Okay.
MR. %MIER: Your Fimor, you can find that
on J9 of the amended omplaint if you're looking.
1%M COURT: Thank you.
MR. WYLER: You can find it at IIIII stamp
In the second argnent,
argument of law, because it's a moti
have to argue as a matter of law a
the ratter of fact that I didn't
they put us in a position to any
that, even if we did
not provide than.
Q.
A.
a cudgel.
Page $ 7
we
rely on
nts. So
utter of law
r the law we maid
then, they've been using that as
And, Your iknor, if I can, I'll
'47 \c's
to J6 and J10. Those are the two
to dismiss that do make that assertion.
WE COURT: 6 and 10?
MR. RYMER: Yes, Your Reno:. And I'll read
that on the record. J6, IIIII stamp 103, it says,
'It is significant to note that, despite
plaintiff's allegations to the contrary, Defendant
Aruterg is not in custody or control of the
records sought and is, therefore, not a prefer
party to this action."
And, in the seccnd motion to dismiss, I'll
read that to the Court as well. That's at J10,
IIIII stamp 222. 'It is sigtificant to emphasize
that, despite plaintiff's allegations to the
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Page 48
Contrary, Defexiant Aronberg and the Office of the
State Attorney for the 15th Judicial Circuit are
not in custody or control of the records sought
herein, and, therefore, Defendant Arenberg is not
a prcper party to this action. In fact, Defendant
Sharon R. Bock as clerk and captroller of Palm
Beach County, Florida, admits that she is the
custodian in possession of the docents that are
the subject of this action."
BY MR. WYLER:
Q. Mr. Arenberg, after initial filings,
did you take any other steps notify the
newspaper and its lawyers that you fice lacks
possession, custody
A. Yes,
cane out that
Post and tryi
documents, I s
ask was doing that. I had a Fa.cebeek message
Id resign.
Peter Antonacci, my predecessor down in
reached out to me, wanted to krone why I was
ing for the grand jury -- or, for Barry Krischer or
or others. And I told him I don't have the documents,
because that to be lost in the articles written.
1 of the requested records?
i ause, when the articles
stonewalling the Palm Beach
let public access to these
o get calls and texts from people
Page 49
And so I took an extraordinary step. I
made a decision to create a Web portal and to release
every document that my office had relating to Jeffrey
Epstein and put it on the Internet, and that was -- and I
have just to refresh my recollection, the dates up here
that was January 30th.
Q. Okay, great. On January 30th, did -- I'm
going to shoe you joint Exhibit No. 12. Do you recognize
this as the press nisei' that your office released that
you were just explaining?
A. Yes.
Q. And can you read it to the Court, please?
A. This is a press release that my office put
out when we established this Web portal, and it says
this: 'Palm Beach County State Attorney Dave Arenberg
creates Web portal for public access to Jeffrey Epstein
records.'
Art then there's a statement fret me: "In
respense to a large meter of requests, my office is
posting online all the public records from the
investigation and prosecution of Jeffrey Epstein. these
records, which have all been released previously pursuant
to public records requests, can be accessed through the
following link," and it gives the link.
"The Jeffrey Epstein case occurred several
www.phippereporting.coa
([Phone Redacted]
EFTA02734993
Judge Luis Delgado
September 06, 2022
Page 50
1 years and aultiple state attorney administrations before
2 I became Palm Beach County State Attorney in 2013." I
3 was elected as -- As an aside, I was elected in 2012, but
4 I started in 2013. "As such, I have never seen or had
5 access to the Epstein grand jury transcripts as the state
6 attorney's office has never possessed them. As lawsuits
7 and investigaticns continue to mote forward, I hope that
8 Epstein's victims are able to achieve justice and clips-sire
9 they deserve."
10 Q. Thank you. Now, in addition to that press
11 release, did you make any other steps to further notify
12 plaintiff that you don't have the records they were
13 seeking?
14 A. In addition to pitting out that press
15 release and secding it to the Palm 13warh Post and every
16 other media outlet in our database from around the
17 country, I also vat that press release on my 7Mitter page
18 and, not only that, I pinned it so it would be the first
19 thing on my Twitter page.
20 I also put it out on my Facebook page, and.
21 as a result, it received national media coverage,
22 including coverage from the Sum-Sentinel, the ccmzetitor
23 to the Palm Beach Post. Tit, curiously, the one paper
24 that did not report on this Web portal, the one paper
25 that did not report at my releasing all the dcarnen
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my possession was the Palm Beach Post.
To this day, they still
acknowledged that I posted every to Web
page, onto my Twitter page, onto F page, onto
our Web portal. To this day, I've had that
tweet pinned to my page f months in the past, they have
never acknowledged that it
Q. Thank you, Vt. . I'm going to show
No. 11. Do you recognize this as
were just referencing?
you our joint
the Twit
A.
rel÷ Yes.
Q. Thank you.
A. It also looks like this could be from
Facebock as well.
Q. Okay. All right, are you aware and
familiar with the June 3rd notice to dismiss hearing and
tataterents made on the record by Judge Marx, the ones I
just read to the Court previously?
A. Yes.
Q. What did you think of those remarks?
MR. BIDE J: Objection, Your Honor,
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does it say the same thing as the press 12
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Page 52
If: COURT: Sustained.
BY MR. WILIER:
Q. So following those marks from Judge Marx,
do you believe that the newspaper knew or should have
known that you were not in possession, custody or control
of those records and that they should have towed you
frail the lawsuit even then?
MR. BIrmAil: Objection. Again, Your Hoor,
I don't know how Kr. Aronberg could know what the
newspaper knew or should have known.
1113 COURT: So your jecticn is
speculation. Susta
621. WYLER:
119E right, you know, generally,
let's keep objections
then if I reed to, or I'll ask.
BY
we have a j
short.
for
Okay, Your Honor.
Can you -- Mt. Aremberg, can you please
the Court how it is impossible for you to
these records?
A. Well, first. I never had these records, so
iously it's impossible for re to provide them. I told
them that. They knew that.
Page 53
Secondly, I have no custody or control over
these docurents. I've never had them. They know that,
which is why they now are ring the goal posts to change
this whole lawsuit, this whole action from custody,
possession, control, into keeping re on the sidelines so
I don't object to the clerk's ability to release the
documents. So it's a new -- it's a new ball game now
apparently.
But the newspaper obviously knew that I
never had these dccurtnts, that I never had custody or
control over then because I repeatedly told them.
Q. All right. And then so, following Judge
Marx's order that I just referenced on June 3rd, what
action did you then direct me to take?
A. 9R11, after Judge Marx's order and I was
dismissed from ore of the two counts, I asked you to seek
sanctions, well, to start the ball rolling, 57.105, so to
send a letter that gives the 21-day notice.
Q. That's correct. And let me show you a copy
of that letter.
MR. WYIfl: Your Honor, if you see our J14,
it's a copy of the 57.105 demand letter and the
email to Mt. Mendelsohn that accompanied it, and
just for a point of clarification, there is the
motion for attorneys' fees at the end, but that
www.phippsreporting.com
([Phone Redacted]
EFTA02734994
Judge Luis Delgado
September 06, 2022
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Page 54
was not filed ai June 8th. Pursuant to the
statute, you have to wait at least 21 days, and as
you'll see later, that was followed.
7103 ODURT: The way this is -- I assure
this was attached to the letter?
MR. NYIER: It is, Your Honor. It's at
Static 235, yes, Your Honor.
BY MR. WYIER:
Q. Do you recognize that, It. Arenberg, as a
copy of the email to It. Mendelsohn and then the 57.105
demandthatwe issued to the plaintiff?
A. Yes.
Q. And, in that letter, did we assert our
position that their demand to produce the 2006
records, that there was no basis in fact or law?
A. Cbrrecc.
Q. Do you ?mow if the newspaper dropped you
fro the lawsuit within the 21-day safe -harbor provision
provided by statute 57.105?
A. 'They did net.
Q. Hut they eventually did drop you?
A. A lag tine later, they did finally drop
Q. Okay, but, before they dropped you, did
not file a notion for summary judment?
Page h5
1 A. Correct.
2 Q. And did that include an
3 affidavit from you?
A. Correct.
5 Q. Let me show you a of t affidavit.
6 That's at J18. Do you regime this as a copy of your
7 affidavit?
A. Y
9 Q.
10 Court?
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13 "My name is David (Dave) Arenberg, and I'm
14 the Shat Attorney for the 15th Judicial Circuit, Palm
15 Beach County, Florida, since 2013 and a defendant in the
16 above-captioned matter. Plaintiff is seeking declaratory
17 relief pursuant Florida Statute 905.21(1) (c) and the
18 Court's inherent authority allowing plaintiff access to
19 the testimony, minutes and °thar evidence presented in
20 2006 to the Palm Beach Canty grad jury, the requested
21 materials, and to use those materials for the purpose of
22 informing the pablic."
23 "fespite plaintiff's above-described action
24 for declaratory relief, neither myself nor the Office of
25 the State Attorney for the 15th Judicial Circuit (SAO) is
ease reed it aloud for the
A. ire page?
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Page 56
in control, custed), or possession of the required' --
excuse me " of the requested materials.*
"As such, the declaratory relief sought by
the plaintiff seeks materials that are impossible for me
or my office to produce. To be clear, neither myself nor
the SAO has the legal authority to obtain and deliver the
requested materials. I've repeatedly made these facts
evident to the plaintiff and the public through not only
the pleadings and correspondence in this matter, but also
through an office press release erg my pane social
media accounts."
"Despite the
neither myself nor the
that the clerk grant
materials after a c
awing my
has access to
office in this
of plaintiff,
the atority to demand
cress to grand jury
has concluded. Moreover,
ither myself nor my office
materials fran the clerk's
other instance."
"As provided in Section 905.1711) Florida
clerk has sole authority and possession of
ed materials, which can only be released by
pursuant to an order of the Court.'
Q. Thank you. Do you know of any other
tive action regarding plaintiff's claim for
declaratory relief after you filed your motion for
Page 57
1 =miry judgment?
2 A. After ue filed the notion for smeary
3 judo/tent, we included the affidavit, and then there was a
4 -- at sore point I was dismissed, and then there was an
amended 7ction after that.
Q. That's correct. And I'm going to show you
J23. Do you recognize this as a copy of the notice where
you were dropped as a party from the lawsuit?
Q. %tat date is that? It's on the top, the
very, very top.
A. This was October 21st, 2020.
Q. Thank you. And, after you were dismissed,
are you aware -- yeah, after you were dismissed, are poi
aware that the Court eventually granted the clerk summary
judgment in their favor, a summary judgment in favor of
the clerk?
Q. Okay. Just a couple more questions for
You.
There's been some references to maybe the
newspaper not just suing you just to get these records
for public disclosure. Even Judge Marx said that she
thought that there was something else going on. What do
you think is the underlying reason here for this lawsuit?
www.phippereporting.com
([Phone Redacted]
EFTA02734995
Judge Luis Delgado
September 06, 2022
Page 58
1 MR. BIDEAU: Cbjecticn, Your Honor,
2 irrelevant as to what the reason is.
3 MR. WYLER: It goes to good faith, Your
4 Honor.
5 THE COURT: All right, overruled.
6 A. Look, it was clear to me from the beginning
7 that this '.tole lawsuit was a twofer for the Palm Beach
B Post. tarter cm, they were able to try to mercane the
9 fact that the Miami Herald, a newspaper 90 miles away,
10 scooped them al the Jeffrey Epstein story, and they
11 wanted to catch up and be the hero of their an
12 narrative. And so they rade themselves the center of
13 this whole thing by suing to get these transcripts.
14 And, number two, they can do it on the back
15 of soceone they have extreme dislike for, and it's men
16 secret in this amity that the Palm Beach Post and I
17 have had =eras battles over the years, usually
18 one-sided, where the Paln Beach Post has, for the past
19 12 years, has attacked me, written many misleading
20 articles, which stem from a personal vendetta fran a
21 leader of the Palm Beach Poet, Randy , and me.
22 And then, after he was removed from his position, his
23 acolytes believed that I had something to do with it, and
24 they -- the attacks continued.
25 I mean, they or.time even today uter
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there's a front page article about some
misleading front-page article about a
in Broward who is making claims
ex-wife's deposition. Arid the P
of writing the facts about it,
deposition released.
I mean, for
issue between the Bea t and me, and it's not a
secret. For when they hired a reporter to cover
my office, , prior to my being there,
proses cocaine. So I was thinking maybe at
sane po ld find a reporter to cover our office
Page
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Mant
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0, instead
t the ex-wife's
s has been an ongoing
did not prosecute for crack cocaine. So
this an ongoing thing.
So this whole matter stems fran two things:
The Palm Beach Post trying to get the Jeffrey Epstein
story back, sell newspapers and to go after me, and
they're able to do it. And that's why I insisted that we
at least get the taxpayers sate of their crone/ back
because they had to fight and pay for your legal fees to
fight a lawsuit that was, in my mind, frivolous fran the
beginning because this newspaper kw" I never had these
Moments, I never had control or custody. And it's very
telling that now they're trying to move the goal posts
and make this abotat something entirely different.
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Page 60
BY KR. Hr1.67:
Q. Let's talk about that, moving the goal
posts. We talked earlier about the wording in the
ccuplaint against you. Do you recall the statements were
that you somehow denied the Palm Beach Post and the
citizens of Palm Beach County the grand jury records they
were requesting? Do you recall that?
A. Yes.
Q. And now it appears that we're hearing a
whole new argument from plaintiff today; is that correct?
A. Yes.
Q. And that t me if I'm unrog,
is that they were fine 4 said didn't object to
the records being rel that, for that reason,
they dropped you; te?
A.
B
leadi
: Cbjection, Your Honor,
ME CCM:: Sustained.
Can you please explain your -- your
on of bow they moved the goal posts?
A. Look, I mean, this lawsuit from the
inning was about whether I had pcmmswwion, custody,
control of the Jeffrey Epstein grand jury transcripts.
9 Page 61
1 That's a series of articles they wrote about this. They
2 wrote a long series of articles attacking me for trying
3 to obstruct. Those articles were misleading.
4 The fact that we're here today and now it's
5 not about that, it's about keeping me at the sidelines so
6 I didn't have -- that I didn't object to the clerk's
7 production of these documents is something that I haven't
8 heard before, and I think is so misleading because this
9 whole thing was about the grand jury transcripts. It's
10 not about trying to prevent re from saying something to
11 the clerk.
12 It was clear from the beginning I never had
13 these draments. Judge Marx made it clear on the record,
14 and that's why we pursued these sanctions.
15 Q. Thank you. And isn't it -- isn't there a
16 big difference between objecting to the release or
17 intervening in the release and actually being able to
18 release the records?
19 A. hey F.ed re to get the records. They
20 didn't sue me to prevant re from speaking up.
21 Q. There's nowhere in the ccuplaint that says
22 that they're suing to you keep you from objecting to the
23 release?
24 A. Not only is there nothing in the oarplaint,
25 there's nothing in all the articles they wrote. They
www.phippereporting.com
([Phone Redacted]
EFTA02734996
Judge Luis Delgado
September 06, 2022
Page 62
1 wanted this thing to caatinue, to continue to write
2 articles. It amid have been embarrassing for then to
3 admit that they filed a frivolous lawsuit and then ttay
4 had to dismiss me. So they continued these articles way
5 past the 21-day period, and now, when they got called on
6 it, they're trying to change the whole case into
7 something about how theyneededcm to stay silent so
B wouldn't tell the clerk to do something.
9 I mean, this thing was about production,
10 custody and control of grand jury documents, and I just
11 don't believe the Palm Beach Post should be able to
12 change it after the fact.
13 Q. So do you believe they have an agenda
14 against you end were intentionally targeting you when
15 they filed this lawsuit?
16 A. They've always had an agenda against am.
17 MR. BICEAU: Cbjecticn, Your Honor,
18 relevance.
19 THE CURT: I think you have already
20 covered it. So I'm going to sustain the
21 objection. That's fine.
22 BY MR. %TIER:
23 Q. Have your friends and family been impao
24 by the plaintiff's agenda-driven reporting?
25 MR. BILEAT: Again, j'llge, objection,
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relevance.
7103 COURT: Sustained as
MR. WYLER: Tank
BY MR. Wil-Mt:
Q. Do you believe that 42ff's
relationship with you prevented them from accepting the
ultimate fact that you have no legal right to possession,
custody or control,ef the release of the requested grand
jury records?
Cbjecticn, armilative, Judge.
'ye been over this. He asked the same
fore.
Tht COURT: We've covered this.
MR. WYLER: Ho further questions.
Th73 MUD': Cross examination.
MR. BICEAU: Thank you, Judge.
CROSS EXAMINAT1CN
BY KZ. BICEAU:
Q. (bpi afternoon, It. Aronberg.
A. Hi.
Q. You said a couple minutes ago to your
lawyer that you filed this motion to get the taxpayers
back some of their money, right?
A. Uh-huh.
Q. That's what you said? The taxpayers are
Page 64
1 not out any money, are they?
2 A :t is a contingency -fee basis.
3 Q. Right, and so the answer to question is:
4 The taxpayers are not out any money, are they? You don't
5 owe your counsel a nickel today, right?
A 2 think that's fair to say.
7 Q. You haven't paid your counsel a nickel
8 today, right?
9 A. We have not.
10 Q. And the only way that your counsel gets any
ll money is if he wins this 57.105 nab , right?
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fl-
out any money,
A. Yeah
Q.
ago that you
taxpayers back
That's a good
So under no are the taxpayers
You're right.
you testified a few minutes
s motion in order to get the
, that was wrong, right?
Look, the fact that or office --
Is that right, or wrong?
book, I have to dispute with you on that
, look, the fact that our office has spent
having to deal with this frivolous lawsuit, that's
yer rcney. And, yes, so perhaps I misspoke when I
said that because the money wouldn't go directly to him
Page 65
1 unless we got something today. But it's clear the
2 taxpayers are cut money when you divert my attention from
3 real business to focus on your frivolous lawsuit that has
4 been filed for nothing more than to sell newspapers and
5 make a profit for your client.
6 Q. So the only person involved in this lawsuit
7 -- I haven't seen you -- Have you testified in any
8 hearings in this case?
No.
10 Q. Have you been deposed in this case?
11 A. No.
12 Q. Okay. So the only thing you've done in
13 this case presumably is chat with your lawyer, correct?
14 A. Are you saying cur office has done nothing,
15 has not been distracted about this case?
16 Q. I'm talking about you, It. Aronberg.
17 A. II, I've spent plenty of time about this
18 case. I have spent way more time than I ever should have
19 in a case that I had nothing to do with.
20 Q. Nr. Arcoberg, you maid that this idea that
21 -- Well, let me hack up for a second.
22 You said that you thought the Palm Beach
23 Post brought this case for two reasons: One, they
24 brought this case because they don't like you and they
25 wanted to mnbarrass you somehow, and they brought this
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Judge Luis Delgado
September 06, 2022
Page 66
1 case because they've been scooped by the Mini Herald, I
2 think you said, right?
3 A. Yes.
4 Q. On the Epstein matter. Imo, you agree
5 that an investigaticm into the Epstein matter and what
6 your predecessors did in the Epstein matter is a
7 legitimate matter of public interest, right?
8 A. The investigation of Jeffrey Epstein?
9 Absolutely.
10 Q. Absolutely. And the -- And the
11 investigation of what your office by your predecessor --
12 By the way, nobody has ever suggested, Mr. Aronberg, in
13 any of the pleadings filed in this case that you
14 personally were involved in whatever happened with
15 Wt. Epstein. That's not in the =plaint, right?
16 Iterate no reference to you personally having been
17 involved. In fact, the complaint makes it very clear
18 that this was your predecessor who was involved, correct,
19 not you?
20 A. Correct.
21 Q. Nat, BO the pleadings we drafted didn't --
22 didn't accuse you of having done anything wring with
23 respect to Mr. Epstein or the plea deal that got cut or
24 whatever happened with the fads, correct? 14 =cowl
25 you weren't around in the pleadings that we filed
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case, right?
A. You acknowledged that
with the stuff in the past, but
hiding grand jury transcripts t
Q. There's nothing in
you hid grand jury
The lawsuit for declare
you either turn oyfwhat ydg,had,
A.
Q.
filed in
about
1
, correct?
o do
me of
possessed.
that said
the mast --
was to declare that
correct?
don't read your own newspaper.
about the pleadings that are
I understand that you are concerned
of this. I'm concerned about the
The legal side sued se to get grand jury
transcripts, and the press side accused me of hiding
theca.
Q. Okay, so we can agree that the legal side,
the thing we're here on in this case today, is about
getting grand jury testimny, correct, getting grand jury
transcripts?
A. Possession, custody and control, correct.
Q. Incidentally, when my fin:first got
involved -- Do you have the exhibit binder in front of
you?
A. I do not.
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Page 68
Mt. BIDEAD: Okay. Can we get an extra
copy of it?
VERITSTONE: We can pull it up on the
screen.
Mt. BIDBAU: Exhibit 1.
1HE CURT I'm sorry, what number?
MR. ELDEAD: Exhibit 1, Your Honor.
MS. VELEISIINE: Your ibnor, may I approach
with the exhibit binder?
1HE COURT: Yes.
BY MR. RIDEAU:
O. It. Aronberg, i be a little quicker
if I just hand you the b okay? tway you don't
havetoturnaround it.
A. is it?
Q.
A.
is en August 21, 2019, latter
from to you, correct?
Correct.
And this was a request for -- Nbw, prior to
office had received a umber of public records
to from the Palm Beech Post, correct?
A. About -- About this?
Q. About the Jeffrey Epstein matter. All my
Page 69
gnostical, are stout the Jeffrey Epstein matter.
A. Okay, yes.
Q. dray, and this use the first letter you
received from my office, correct? Pron Mr. Mendelsohn
about the Jeffrey Epstein matter, right?
A. I don't know if this is the first letter.
If you say it, I ass= that's true.
Q. And, in this letter, Mr. Mendelsohn
requests a number of &camas end records with respect
to the grand jury matter concerning Mr. Epstein, correct?
A. I'd have to read it, but, yes, I'll take
Q. By the wry, your office never actually
responded to this particular letter, did it?
A. I don't know.
Q. And, in fact, after this letter, if you
look at tab 37, which is the very last tab -- and I
apologize, the binder is so big, it's hard to move
around. This letter is dated of August of 2019.
Tex CCURT: What exhibit?
Mt. BIDEAU: Exhibit 37, Your lemur.
N.S. tiousreme: It's also on the screen if
that's easier.
1HE WIIVESS: Maybe I can lock at the
screen.
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([Phone Redacted]
EFTA02734998
Judge Luis Delgado
September 06, 2022
Page 70
MR. BICEAU: You can look there, okay.
TIC COURT: I'm going to sloe you down a
little bit. I can't see the writing at the screen
from that far, so I'm going to flip to 37.
MR. BIDEAU: And, I apologize, I hate these
big binders.
0/URT: It's okay. I just want to see
out you're talking about as you're talking about
it.
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12 BY MR. BICCAU:
13 Q. Exhibit 37 is an October 9th, 2019, letter
14 and that's from Mike Grygiel, another lawyer in my
15 office, to your office, and it's following up o0
16 It. Mendelsohn's October (sic) 27th letter, okay, and his
17 September 17th letter. Do you see that?
18 A. Yes.
19 Q. Okay. And up to that point in time, we had
20 not yet received responses to cur letters, correct? Do
21 you knot?
22 A. I don't know.
23 Q. Okay. And then -- And then after that,
24 sir, it was on January it was on it was in 2019,
25 shortly after that, November of 2019 that we filed
You're right, they're not easy to navigate.
All right, please continue.
Page 711
1 first lawsuit against you, correct?
2 A. Correct.
3 Q. So, after having two
4 letters, you don't Imow if we es to those
5 letters, we went and filed a in that lawsuit
6 we named you in your officl capacity, correct, not a
7 personal capacity?
B A. Corr
9 Q.
10 office,
11 time, it
12 right
13 Correct.
14 You sue -- You are an entity like the state
15 attorney's office in its -- by the state attorney who is
16 in his official capacity, correct?
17 A. Yes.
18 Q. And you talked about your original notion
19 to dismiss, J6, so let's take a look at J6, if you want
20 to look at Exhibit 6 in the binder, or can you look at it
21 up there. I don't really care.
22 A. Okay.
23 Q. Let's look at the sent page. Cm the
24 wood page, you --
25 MR. BIDEAU: Ctuld you highlight, Gerard,
you sue the state attorney's
gets sued for things all the
anything to do with you personally,
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Page 72
where it starts with, 'Plaintiff has
improperly..." Dam at the bottom, last
ParagaPh•
BY MR. BD)EAU:
Q. You see you indicate -- your lawyer
responded by saying, 'Plaintiff,' that would be the Palm
Beach Post, 'is improperly seeking requested 2006 grand
jury materials for the purpose of public disclosure
pursuant to the Court's inherent authority and
supervisory powers over the grand jury.' Do you see
that?
A. Yes.
Q. So at leas
objecting saying the
not entitled to
want to give
what the see
A.
, you were
don't get these, they're
can't -- because they
public, right? And that's
Is that what it says?
Look, you are -- this is exactly the
t you guys did. You filed a lawsuit against
the first defense that we had was that we didn't
the documents, bat because, as you know, in a notion
dismiss you have to argue as a matter of law. So the
only way we could dismiss this frivolous lawsuit is to
Page 73
1 argue asawatter of law. And this -- this was the legal
2 position that says, by the way, under the law you're not
3 entitled to these &amts. And then you -- then your
4 client then wrote all these articles saying, see, he's
5 trying to block us, he's trying to obstruct us, without
6 mentioning the amber one defense, which was he doesn't
7 have the dccurrents. That could have gone a long way.
8 That could have sham maybe save good faith if you would
9 have done that.
10 Q. Mr. Aronterg, in connection with -- at the
11 time of the notion to dismiss, you had filed nothing,
12 your office had done no indication that you didn't have
13 the documents, did you, up to this point in time? Up to
14 this point in time. And this is ally -- this is only
15 late 2019. You hadn't filed an answer. You hadn't filed
16 any motion.
17 A. In ear motion to dismiss.
18 Q. You hadn't responded to any of our three
19 prior lettere, and the first pleadings you filed
20 indicated that your objection was that we were improperly
21 seeking these materials under the Court's inherent
22 authority and supervisory powers over the grand jury for
23 public disclosure. /bat was the official position filed
24 by your lawyer, and I understand, you were taking a legal
25 position to dismiss the lawsuit.
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Judge Luis Delgado
September 06, 2022
Page 74
1 A. Correct, but also I do rant to challenge
2 one part of that. When you say that we -- we were silent
3 over and over again about responding to your public
4 records requests, I have spoken to -- I've spoken to the
5 public records person in my office who believes that she
6 did say that ae didn't have the docanents to everyone who
7 has requested them.
B MR. BILE U: Your Wafer, I'd MOM to strike
9 as hearsay.
10 ThE COURT: Sustained.
11 BY MR. BIDEAU:
12 Q. And, after you filed this notion, the Palm
13 Beach Poet filed an amended complaint, correct, and, in
14 that amended coplaint, the Post asserted two causes of
15 action, right? One was a statutory claim, and one vas a
16 declaratory judgment claim under the First Amendment and
17 the Court's inherent authority, correct?
18 A. Correct.
19 Q. And the motion to dismiss and the arguments
20 in front of Judge Marx all went to the statutory claim,
21 not to the second claim, the declaratory judgment claim,
22 cannot?
23 A. The Man( hearing was about Count 2.
24 Q. Count 2, the statutory claim, correct?
25 A. Correct.
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Q. And, so, when we look at --
complaint here because I want to read
amended complaint, which is J9, and-1/
Page 715
t
a look at
THE HURT: Let me for one second.
So I'm flipping t these, but, like, for
example, right the 't -- I can't see that.
Mt .t, I know.
But I saw that you were able to
bl of --
DEAU. He is.
÷ COURT: -- and I'm going to ask him to
t, that way I don't have to -.
MR. BIDEAU: I'm going to ask him to blast
it up so you can see it.
THE COURT: tank you very much. I
appreciate it.
BY MR. RIDEAU:
Q. So let's take a look here at Count 1 for
declaratory relief.
MR. RIDE U: Gerard, it's on page 19.
Okay, just blow up the Count 1 for declaratory
relief, please, that section.
BY MR. BIDEAU:
Q. Then, with respect to paragraph 7, do you
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Page 76
see that am of the allegations is that the Post
respectfully requests the Court declare that, pursuant to
Plorida Statute 905.27(1), it is entitled to access to
the testimony, minutes and other evidence presented in
2019 -- 2006 to the grand jury because such disclosure
and access would be in furtherance of justice, and then
it cites to 905.27(1)06 (sic), correct?
Yes.
And it says, because the Post is not Q.
seeking these materials in connection with any civil or
criminal case, it seeks a declare -- In other words,
it asks the Court, hey, construe paragraph, construe
the statute to allow us give this stuff to the public
because we recognize interest of justice
provision in that s rota, t7
A. -t it says it is.
Q. that's what it says, right, in
furtherance o That's what the request was?
Again, it is what it is.
Okay. And then paragraph 71, the Post
declaration that disclosure of the
minutes and other evidence presented to the
and jury is appropriate pursuant to the Court's
ent authority over grand jury proceedings because of
the exceptional public interest in this case and
1 compelling ciremstarces supporting transparency. Do you
2 see that?
3 A. Yes.
4 Q. Okay, and, with respect to paragraph 71, do
5 you low what the answer was --
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Q.
A.
No --
-- that you filed?
-- not offhand.
MR. BIDEAU: Okay. Can we pull up the
answer to 71? That's J2, page 10, 71, 71.
BY MR. BIEEkU:
Q. As to 71, you admit that we seek a
declaration, but you deny the remainder of paragraph 71.
So, in fact, although we were asking in 71 that the Court
uses its inherent authority over grand jury proceedings,
because of the exceptional interest in this case and
coopelling circumstances, that the Court declare that
we're allowed to use this testimony, your answer was,
well, that's your declaration, but we deny paragraph 71.
So you asked the Court to deny that relief?
A. It is what it is.
MR. BIDEPO: Okay. And then we'll go to
paragraph 72. I think you have a slide on that,
72.
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([Phone Redacted]
EFTA02735000
Judge Luis Delgado
September 06, 2022
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BY MR. BICEAU:
Q. And, in 72, we say, the Post has sought
from defendants, but defemdants have refused to provide,
access to the testimony, minutes and evidence presented
in 2006 to the grand jury. Indeed, defendants have each
filed potions to dismiss the ccmplaint and the reliefs
sought under 50 -- 905.27(11. Accordingly, a good faith
dispute exists between the parties. Do you see that?
A. Yes.
Q. And you see in that case your office
admitted that, your lawyers admitted that at least,
admitting there was a good faith dispute between the
parties and admitting that the defendants had refused to
provide access to the testimony, minutes and evidence
presented, right? Nb qualification, you all just admit
that.
A. Again, it .s ,that it is.
Q. Now, you said that this argueent that
Ms. Whetstone made during her opening statement, that the
idea that you wouldn't object to disclosure, was
something new, that just popped up at this hearing, that
-- I think your phrase was, "you moved the goal posts,*
right --
Yes.
25 Q. -- at this hearing? But that's not
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Page 719
either, right, because that issue had been
you all the way back in June of 2020,
A. Are you saying this that?
Is that that you're saying, or a say that it was
about possession
Q. The issue - issue of your position
with respect to whether -agree with -- I'm sorry
-- whether you would object the request to have the
records releaseE %MS an issue that bad been raised by
Mr. Mendel 'Same of 2020, correct?
'Cu restate the questtcn, please?
. Let me -- Let me try to do it a
lit iculately because that was pretty
terrib Let me get the letter out to make it easier
for all of us. J16, please.
You've seen this letter, right, Exhibit 16?
A. I'm not sure if I've seen this one.
Q. Okay, well, did you /mow that, when your
layer filed his 57.105 notice back in early June and
then bad that two-page letter that he served it with,
right, and he laid out, we don't have the records, right?
Q.
Q.
Correct.
Mitch is the basis for your 57.105 --
Yeah. correct.
-- we don't have it, leave w alone.
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the binder.
A.
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A. Well...
2 Q. Basically.
A. Yeah, ad possession, custody or ccrtrol.
Q. Okay, no possession, custody or control.
Mr. Mendelsohn, a couple weeks later, wrote
a letter back, right? Do you resat seeing that?
This is the letter you're referring to?
That's the letter, and it's under tab 16 in
Again, I don't rooter seeing this letter.
Cam you flip to the page?
This letter to my attorney --
To your at sigh
-- back ' of 2020.
sae
caber reading this letter.
let ere see if I can help you
out then. to the middle of that paragraph
'The state attorney was named...• Can you
t, where it says, 'The state attorney was
not -- Do you see it? Okay.
Do you see It. Kendelsolm writes back, he
'An* the state attorney does not currently
physical possession of the Epstein grand jury
materials' -- I man, by the way, the Office of State
?age
1 Attorney at some point would have had possession of the
2 materials that were going to be presented to the grand
3 jury, right? I mean, the office presented this stuff to
4 the grand jury. You would have had possession.
:f yof re talkIngaba.:t the transcripts,
no.
7 Q. No, but I'm talking about the other
8 materials, the investigative materials, the exhibits, the
9 minutes, the other things like that.
10 A. its minutes?
11 Q. Your office would have bad those?
12 A. fi e minutes? I don't believe so. I guess
13 it depends. I don't know how they did it back in Barry
14 Krischer's achinistration, but the documents that you
15 asked for, I've never had. So that's the only question I
16 had.
17 Q. Well, hold on. You MOM the transcripts,
18 because in the complaint, we actually ask for more than
19 transcripts.
20 A. Right, but those are documents I've never
21 had, and that's the whole thing.
22 Q. You personally never had the, but --
23 A. Right.
24 Q. -- you agree with me, the Office of State
25 Attorney would have, during the course of the
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Judge Luis Delgado
September 06, 2022
Page 82
1 investigation, mild have had those materials, it had to?
2 A. Again, I don't fnrw what Barry Krischer's
3 administration had back then.
4 Q. Well, when you got the public records
5 request, did you have somebody go back and look and see
6 what they had?
7 A. Well, obviously, when we got public records
8 requests, we try to fulfill all of the:.
9 Q. Right, and you don't know personally
10 sitting here today what was dime to respond to any of
11 Mr. Mendelsohn or Mr. Gaygiel, my partners' letters
12 asking for materials from back during the Barry Krischer
13 days, correct? Because there's been no response to those
14 letters even to today.
15 MR. WYLER: Objection, Your Honor, those
16 letters and the Chapter 119 request have nothing
17 do with this lawsuit. They're not referenced in
18 the lawsuit. They have no bearing on the
19 requested relief that plaintiff is requesting
20 here.
21 NB COURT: Overruled.
22 BY MR. BICEAU:
23 Q. And so --
24 11111 0OURT: an you repeat the question?
25 MR. BIDEAU: Sure, I'll repeat the
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question.
BY MR. BICEAU:
Q. You don't know what
did to respond to Mr. Mendelsohn
letters, Exhibit 1 and Exhibit 37
personally laze?
A. It is my
oonversatims I
records
were told,
Page
office
el's
t? You omit
based on
th f f ice, that every public
responded to and that people
Jeffrey Epstein grand jury
trWMT did not have them.
Mendelsohn and Mr. Grygiel, in those
1el ueet a lot Tore than just transcripts, right?
They wanted evidence. They wanted exhibits. They wanted
that sort of material, correct? That was Exhibit 1 and
37, we looked at, right?
A. When I say 'transcripts," I mean records, I
man records, that anything we had, we put then out on
that portal that your client refused to acknowledge.
Q. Well, the portal was things you'd already
produced. That's what -- Your press release says this is
all the stuff we've already given out, right? That's
already been in the public, right?
Q. Okay, well, but you understand, we were
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Page 84
asking for stuff that you hadn't yet given out, and, as
beat you know, you don't have any personal knowledge as
to 'tether or not -- what happened to those requests, to
It. Mendelsohn's request or Mr. Grygiel's request, right?
You personally don't know?
A. Kell, again, you objected because of
hearsay before, but, in speaking to an individual who
does public records in my office, I've been told that
that person had said whether or not we've had those
dm/mots, and so I believe that everyone who requested
documents were told truthfully whe'`her we had those
is in a broad --docunents or not. And we
in a broad way.
Q. In a , right?
A. Co
Q. have copies of any responses
or that went Mendelsohn or Mr. Grygiel in my
office when documents, correct?
I ;amid think that Mx. Wyler would have
t we produced.
Okay. Now, Mr. Mendelsohn, back in June
in response to your first 57.105 letter, he
The state attorney was named as a party, not simply
custodian of the grand jury -- the grand jury records.
The state attorney was named in his official capacity as
Page
1 his office has, quote, as his primary interest,
2 protection of its grand jury system, and he cites to a
3 11th Circuit decision. Do you see that?
4 A. Yes.
5 Q. Okay. And, in that case, the D.S. petition
6 -- be goes on to explain it. He goes on to explain that
7 the Broward County State Attorney was involved in this
8 case, and so Kr. Mendelsohn was indicating to pm in that
9 case where you were named not only whether you had
10 custody; you were named in that case basically because
11 you're in charge of the grand jury process, you had the
12 right to object if the clerk wanted to give out those
13 records or not.
14 A. lit:eredoes it say that?
15 Q. It's in the -- The case indicates that,
16 when one seeks grand jury materials, the relevant state
17 attorney is a necessary party in order to protect the
18 grand jury system, and the Office of State Attorney
19 supervised it to make arguments if needed against release
20 of the grand jury materials. Do you see that?
22 Q. So Mr. Mendelsohn was telling you, as
23 opposed to what you said a few minutes ago in here, that
24 the first time you saw these goal posts being roved,
25 Mr. Mendelsohn -- was today when Ms. afretstone testified
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September 06, 2022
Page 86
1 -- I mean, when Ms. Whetstone talked. In fact, all the
2 way back to when the very first 57.105 motion was filed,
3 Mr. Mendelsohn told you that me of the reasons that the
4 Post sued you in this case was in order to address the
5 situation that you had the right, if you thought it was
6 appropriate, to object to the release of materials. Do
7 you see that?
9_ Was that in the =plaint?
9 Q. I'm asking about the -- I'm asking about
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16 But you told me that this idea of swing
17 the goal posts, that the Post was suddenly making that
18 argument, you told everybody in this courtroom a few
19 minutes ago that just happened today, I mean, they're
20 just roving the goal posts on me. Well, if the goal
21 posts are being roved, that was back on June 23rd of
22 2020, and you rumba seeing this, right?
23 A. Again, I don't remember seeing this letter,
24 but, again, this was not part of the cocplaint. This '
\ I
25 an after-the-fact letter fret tor. Mendelsohn to my
StPage 7
A. Well, the letter you wrote after -- well
after the complaint, the letter you're showing re here
that was sent to Mr. Wyler is that it says it is.
Q. Correct.
A. That's on not in the complaint, right?
1 lawyer.
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Q. Correct, and so --
A. Okay.
Q. -- you -- neither
responded to this letter, right?
A. Well, you'l
about that. Obviously I
letters written t
Q.
with the p
partied
sentence, These are secs
state attorney was named
Very last sentence of that paragraph.
A. Yes.
MR. BIDEAU: Can we take a look at
Exhibit 21? Do you have Exhibit 21 up?
Can you -- Can you blow up the part that's
highlighted, please, and I'll read it?
BY MR. BIDEAU:
Q. Now, Exhibit 21 is Defendant David
Aronberg's response to plaintiff's menorandum in
opposition to the 57.105 motion, the original one filed
lavye
But you told us you're familiar
're not familiar with this
ve to talk to my lawyer
smelly respond to
I don't rester seeing this letter.
Now, Mr. Mendelsohn indicates in the last
of the same reasons why the
in this case. Do you see that?
Page 88
1 back in Arne of 2020. And do you see in paragraph -- in
2 the first paragraph, you indicate, quote, Nonetheless,
3 the state attorney has no objection and never had any
4 objection to the Court releasing the records sought by
5 plaintiff as to the disclosure of the requested materials
6 sought herein lies within the province of the clerk
7 pursuant to the order of the Ccurt. Do you see that?
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Q. And this is the first time in any pleading
-- Strike that.
First of all, obviously you knew this was
an issue back in October of 2020ini rfact that the Post
was arguing that cos to be in this case
was because you had to object, because you
address that issue 2020, correct?
A.
().
argument had
but
ght, as of October 2020. So that
not for the first time today,
20, right, It. Aronson?
Aronterg.
21 Aronberg. I'm sorry.
A. This is what it says it is.
And, again, I felt that this sentence was
stent with what our position always has been
because, when we were forced to do the motion to dismiss,
Page 89
1 we were forced, because of a ratter of law, to rake the
2 legal ailment as a legal ratter that the Post is not
3 entitled to this, but as far as my belief of whether I
4 care whether these grand jury dockets are released,
5 I've never cared ate way or the other, but, because of
6 this, in my view, bad faith lawsuit, you forced us to do
7 a notion to dismiss that told you we don't have this
8 stuff, and, secccdly, we had to do a response as a matter
9 of law.
10 Q. Okay, now let me get back to my question.
11 My question was: You told the Court earlier today that
12 this roving the goal posts, this idea that you had the
13 right to object and we wanted to make sure you weren't
14 going to object was something that care up for the first
15 time today, and that wasn't true, was it? That issue
16 came up back in June of 2020 at the -- at the latest when
17 Mr. Mendelsohn put it in his letter, and you saw it
18 necessary to address it in October of 2020, right?
19 A. So the letter that I said I don't remsrter
20 seeing is the letter that you say put be on rt tice that
21 this argument was being rade?
22 Q. Well, that letter certainly put you on
23 notice if you didn't know it before that, sir, because it
24 says it clear as day.
25 A. But it doesn't rake my statement
www.phippereporting.con
([Phone Redacted]
EFTA02735003
Judge Luis Delgado
September 06, 2022
Page 90
1 inconsistent. It said, again, that I was not aware of
2 your moving the goal posts, and, besides, it doesn't
3 matter becausethistle thing is about possession,
4 custody and control, which you informed of that we didn't
5 have. Noe you're saying, cell, this whole thing was
6 about you wanted me to talk to the clerk, or you didn't
7 want me to talk to the clerk, and to me that's
B disingenuous because that's not the subject of this
9 lawsuit.
10 You mentioned in a sentence that
11 Mr. Mendelsohn wrote to my lawyer notch later than the
12 complaint, well after the complaint, in one sentence in a
13 letter to my lawyer, and you're saying, aha, we wanted
14 this the whole tine.
15 Q. Well, certainly we wanted it the whole
16 time, and we wanted it at the, as Mr. Mendelsohn will
17 testify, and Mr. Mendelsohn wrote that when your lawyer
18 sent a 57.105, saying our case isn't frivolous, we think
19 your office might have possession of the records, at
20 least same of the records that we were seeking, and in
21 addition, your office has the right to object.
22 A. Did you put that in the complaint? You
23 didn't cat that in the complaint.
24 Q. I imow it's hard for a lawyer to not ask
25 questions, but --
Page Al
1 A. Fair enough. Fair enough.
2 Q. And try not to argue
3 reporter is going to kill us.
4 Okay, in any event Wt. in the
5 October 14th, 2020, response, you that the state
6 attorney has no objection to the dirk pro:beim
7 these records if the clerks them right?
A. Ri
9 Q. Ow, by the way, that the clerk
10 had already produced without -- well. pzekebly --
11 nobody could fines court order -- had given them to the
12 D.S. At and the FBI years earlier, right?
13 I guess so. I mean, I wasn't there years
14 earlie if that's what happened, yes, sure.
15 Q. And, by the way, shortly after you filed
16 Exhibit 21 is when the Pale Beach Post dismissed the
17 case, right? It was within 14 days of that, correct?
18 We can do it up there. Maybe 17 days?
19 A. Whatever your timeline says.
20 Q. Right. All right, you indicated on the
21 20th is the first time you stated you had no objection to
22 production of the materials, okay, and then on
23 October 21st, now that you said you don't have them and
24 you don't object, the Post dropped you as a party seven
25 days later, see that?
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Page 92
A. Yeah.
Q. Right? Okay. And then 17 days later, you
file an mended notion which makes a host of arguments
not set forth in your original motion back in June
of 2020, correct?
A. Well, you have to ask Mr. Wyler about the
siostance of that, but I know that the motion -- the
amended notion was filed after I was already dismissed
from the lawsuit and after your client failed to dismiss
me within the 21-day IIIII period.
Q. Nell, that's the 21- IIIII period for
the first notice that you fil
A. Coloetn, Co
Q. But the, i We're here on today,
and the notice, is your according to the
amended notice
filed, correc
A.
river served prior to being
e you saying that the filing of the
means that the first motion is DOW void, it
y, it didn't exist?
We're going to be arguing that to the
t the filing, under the law, the filing of a
motion that raises new and different arguments
utely goes away, the first motion pea away.
A. But the whole purpose of the 21-day novice
Page 93
is to give you a chance to dismiss me, and I was already
dismissed by that point, so --
Q. So let's take that to its logical -- let's
assure you had gale ahead and served this back, say, back
here in October, okay, and then you filed that response
and we looked at it and said, II, he's now admitting --
he's now saying he's not going to oppose it. If we had
dismissed you right then, you'd have no fee claim, right,
because under the rule, we're allowed to dismiss.
A. You get 21 days.
Q. We gat 21 days, right. So if you had
served it all the way heck here in October and if we had
gotten your response and dismissed, you'd have no fee
claim, right? We would have gotten your 57.105, and
within the IIIII period, we would have dismissed it,
right?
A. Ifthesecondonewas filed before I was
dismissed, within the 21 days --
Q. Yee, sir.
A. -- ard the case was still pending? Men,
yeah, you'd have a =In better angtment. But you don't
have an argurrent rod because, under the first --
Q.
Judge--
A. All right, fair enough.
we'll argue -- We'll argue that to the
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([Phone Redacted]
EFTA02735004
Judge Luis Delgado
September 06, 2022
Page 94
1 Q. -- as to whether we have an argument now.
2 We think the Fourth is pretty clear on that Coe.
3 '2. BEM': Baudyoubringup, please --
4 just last question -- Exhibit 25. paragraph 20?
5 BY MR. BIDEAU:
6 Q. And this is -- this is your amended motion,
7 and you say, The state attorney has no objection to the
8 clerk producing and disclosing the requested material
9 should the Court grant an order to that effect; however,
10 it is impossible for the state attorney to carply with
11 the relief, blab, blab, blab, because you'd made that
12 argument before.
13 That argument that you had no objection to
14 the clerk producing the requested materials was not set
15 forth in your original notice, your original 57.105
16 motion, correct?
17 A. I believe that's correct.
18 MR. RIDEAU: That's all I have, Judge.
19 THE COURT: Redirect?
20 MR. WYLER: Just real quick.
21 REDIRECT EXAMMATICV
22 BY MR. WIMP
23 Q. Mr. Arenberg, you were just talking -- or,
24 just being asked questions about the public records
25 requests that were made of your office.
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Did the plaintiff ever file _( p9
lawsuit against your office for those
A. No.
72. WYLER: No f
THE CCURT: Is Mr. hb excused?
THE WIT= Thank you, Your Honor.
MR. WYLER: re excused.
MS. Your Honor, may we take a
five - weak?
We'll be back in a few. I'll
s, we'll say 5 to 10 minutes.
the record from 3:39 p.m. to
+p.m.)
THE COURT: All right, please be seated.
MR. WYLER: Your htnor, before I rest, I
16 just wanted to say to the Court that plaintiff and
17 defense counsel, we've -- we've agreed on all
18 those exhibits, that joint exhibit book. WO just
19 wanted to make sure that all exhibits, 1 through
20 37, are recognized by the Court.
21 THE COURT: All right, so Exhibits 1
22 throat 37 of this joint binder have been
23 stipulated to and are in evidence, and that's the
24 an agreement of the parties.
25 MS. 781EfSiOt.E: Yes, Your Honor.
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MR. WIER: Thank you, Your Honor.
(Joint Exhibits 1 through 37 were admitted
into evidence.)
Defense rests.
THE COCKY: But not this timeline, correct?
This is not?
MS. UILPTSTIONE: That's CO !CLL. That's a
demonstrative. Thank you, Your Hoor.
THE CLeIRK: Thank you.
MS. METSTCNE: The plaintiff calls Stephen
Mm-Aelschn.
THE COURT: Before we Mllsia4how long is
Mr. Mendelsohn going to t toda
MS. UHETSTIONE: rl make this as fast
as possible.
THE
through eve
ing to rush you
t we're done at 5:00 today.
Thirty minutes.
And after Mr. Mendelsohn, are
Yes, Your Honor.
COURT: Okay. In the event that you're
past 5 -- we're not going to go past 5, but
the event you need to go past 5, I'll bring you
back in later in the week. It won't be tomorrow.
Page 96
Page 97
1 Tomorrow I have another matter that I have to hear
2 in the afternoon. But, in the event we need to go
3 past 5, even if it's for argunent, probably
4 Tharsday or Friday in the afternoon, I'll bring
5 you back.
6 If the testimony is going to conclude today
7 or mostly conclude today and the only thing left
8 are your arguneras of law and your arganents as to
9 the findings of fact, then that might be something
10 that we end up doing on Thursday or Friday
11 afternoon, okay?
12 MR. WiTaBR: Yes, Your Honor. I think it
13 might be worthwhile to point at to the Court that
14 the reasonableness phase of this, if se get there,
15 we've already agreed that there would be no
16 experts, so I think that could dispense with that.
17 Ian located iv in Melia Island, Florida,
18 so I am --
19 THE COURT: Fifteen minutes away.
20 MR. VILER: Super close. So I doe't knty
21 if it would be possible, if we finished with the
22 testimony today, if maybe we could make written
23 closing arguments to the Court instead of ooairg
24 back?
25 THE COURT: How do you feel about writing?
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([Phone Redacted]
EFTA02735005
Judge Luis Delgado
September 06, 2022
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Page 98
MS. FEEDEIrliE: We would have no objection
to that if Your Minor would prefer. ktatever Your
Mawr prefers, we will do.
WE =RP: If you gays don't mind writing.
I mean, I think people are better in writing.
People overestimate their oratory skills, but
okay.
WE CLERIC: Do you solemnly swear or affirm
that the evidence you're about to give will be the
truth, the whole truth and nothing but the truth?
THE WITNESS: Yes.
Thereupon,
STEPICEIrENcescm, EsQ.,
having been daly acorn by the Clerk of the Ccurt,
responded and testified as follows:
WE CURT: htenever you're ready.
MS. hBIETSTORE: Thank you, Your Horror.
DIRECT WAMINkTICN
BY MS. hatElh-D10E:
Q. Good afternoon, Mr. Mendelsohn.
A. Hello.
Q. Please introduce yourself to the Court.
A. Yes. I an Stephen WLendelsohn.
Let me just move a little closer.
Yes, I'm Stephen Mendelsohn, and I'm
attorney at Greeterg Traurig in the Fort
office.
Q. Please let us 'mow
background.
I have a bachelor's r from Colgate
University in Upstate 1 rk, graduated in 1980 and --
in economics, and I have a ee from liorstra
University School Law f 1983.
Q. is your work impudence going
badmards
A. been at Greeters Craurig as a
c®erch2 or for approximately 20 years, and all
been a shareholder at Greenberg. As I
said, . tic out of the Fort Lauderdale office at
present. Previous to that, I was in the Boca Raton
office of Greeterg Traurig, so going back 20 years.
Before that, I was an attorney with
Rutherford Malhull & Wargo in Boca Raton, also commercial
litigation, and, prior to that, Iwasanared partner a
firm in Miami. That was CarolceLga, Langen, Lored.ma
(phonetic) & Mendelson, and before that, I was an
assistant attorney general for the State of New York.
Q. In what states are you licensed to practice
law?
A. New York and Florida.
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Page 100
Q. At Greenberg Traurig, what types of cases
do you practice?
A. A variety of commercial litigation,
copyright, trademark, securities, real estate disputes,
disputes over employment, contract, fraud. Also, not
just simply culumrcial, but I also do defamation defense,
First Amendment cases on defamation, and I do trial work
and appellate work.
Q. *en you were at the New York State
Attorney General's Office, what types of cases did you
handle?
A. I was in the Li Bureau of Labor
Statistics, and that's c tigatrTp, primarily civil
rights and ccestituti cases involving 42 USC
Section 1983, tere ate and its officials were
sued in their ity. That included cases
under the h t, cases under the Seventh
Amend-tilt ccc , and the Eighth Menchent and
Eau s to the U.S. Constitution.
Are you AV rated?
Yes, AV rated as well.
Q. Have you ever been sanctioned or subject to
limry action?
A. Never.
Page 101
A. In any jurisdiction.
2 Q. Ever bad 57.105 sanctions or Rule 11
3 sanctions awarded in any case that you've worked on?
A. This is the first motion ever under 57.105
5 or Rule 11 under the federal rules or any of that.
6 Q. So besides this case, no?
7 A. No.
8 Q. You've never had any motion raised?
9 A. No. No,
10 Q. Sae did you first get involved with the
11 Jeffrey Epstein case on behalf of the Paha Beach Post?
12 A. I was contacted by Michael Grygiel fran our
13 Albany office. He represents a number of media and
14 newspapers throughout the United States, and essentially
15 he heals the media group at Greenberg Traurig. And he
16 was looking for sanecne to help the Palm Beach Pcet in
17 obtaining damnents from at that tine the state
18 attorney's office here in Palm Beach County.
19 Q. when were you contacted by Nike Grygiel?
20 A. When approximately?
21 Q. (Bids head up and dom.)
22 A. In the sa-rer of 2019. It's Grygiel,
23 G-r-y-g-i-e-1.
24 Q. Ito* you. So here, around -- on the
25 timeline, I'm indicating July 2019?
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([Phone Redacted]
EFTA02735006
Judge Luis Delgado
September 06, 2022
Page 102
1 A. Yes.
2 Q. And what did the Pest went to find out and
3 inform the public about with regard to Jeffrey Epstein?
4 A. Right, at that time, the Epstein matter was
5 back in the nets. Mr. Epstein had been arrested by the
6 FBI, and he was being prosecuted by the U.S. Attorney's
7 Office in the Southern District of New York and was in
B custody.
9 So the issues of the plea deal that had
10 been worked cut by Mr. Krischer's office back in 2006 was
11 back in the mess, and, in particular, President Trup's
12 Secretary of Labor, Alexander Acosta, at that tine was
13 the U.S. Attorney in the Southern District of Florida who
14 also helped negotiate the plea and the non-prosecution
15 agreement, and there was a big firestorm as to utether or
16 not Mr. Acosta should or should not resign as Secretary
17 of Labor.
18 Q. what was the Post interested in finding out
19 with regard to the prior grand jury investigation by the
20 Palo Beach County State Attorney?
21 A. Well, because of the firestorm surrounding
22 Alex Acosta and the re-arrest, or mew arrest, I should
23 say, of Jeffrey Epstein, the Post was interested in
24 looking back again as to what Barry Krischer's office
25 state attorney did in tents of using or misusing
1 grand jury process, in terns of the pro
2 Jeffrey Epstein both in tens of the
3 non-prosecution agreement that t. 1 to enter
4 into, as well as the extremely 1 Lent sin that he
5 had.
6 Q. were you • mid in drafting letters to
7 the state attorney's offic documents relating to
8 the Epstein prosecution?
9
10 IISS1pfUNE: would you please bring up
A. 'ifs.
11
12 BY MS.
13
14 exhibi
15 A.
We're pulling up ahibit 1 in the joint
. It's an August 27th letter.
Yes.
16 Q. Or, actually, Mr. Mendelsohn, please let me
17 know 'that this letter is.
18 A. Yes, this is Joint Ekhibit 1. This is a
19 letter I wrote on August 27, 2019, to State Attorney Dave
20 Arenberg on behalf of the Post requesting specific
21 documents related to the grand jury investigation of
22 Jeffrey Epstein.
23 Q. Mbat were you seeking in this letter?
24 A. Particularly, we were interested in items
25 stated on pages 2 and 3, sate of what we were looking at.
Page 104
1 We were very interested in finding out the conversaticns
2 between defense counsel, that's criminal defense counsel
3 for Mr. Epstein and, in particular, Alan Dershoritz and
4 Mr. Krischer's office.
5 We 'rna from investigation that
6 Mr. Dershowitz had provided Mr. Krischer with exhibits or
7 documents which went to injure the testimony -- the
8 credibility and the testimony of the yarag woman who
9 testified before the grand jury. I mean, we were looking
10 for those communications between Mr. Krischer's office
11 and defense ccunsel, in particul where Mr. Dershowitz
12 and others from the defense those materials to
13 damage the credibility o witness.
14 Ke also t cations between
15 Mr. Krischer's off
16 Office because
17 because of Al
18 such communica
19 back
20
21
I and the U.S. Attorney's
were caning to the fore
, and we did ;axe' that there were
and we wanted those documents to go
for public disclosure.
What was the state attorney's office's
this August 27th letter?
A. I never received a IexuSe to this letter.
Q. Were there other letters from Greenberg
ig to the state attorney's office following up?
A. Yes. Mr. Grygiel wrote a letter to the
3 Page 105
1 state attorney's office as well. Men I didn't receive a
2 response, I guess he felt whatever, but he did send that
3 next letter.
4 Q. Okay, ea I'n pulling up Exhibit 37. Is
5 this -- Let me Immo what this is.
6 A. Yes, this is Mr. Grygiel, from our Albany
7 office, this is his letter to State Attorney Dave
8 Aronberg, October 9, 2019, reiterating some of the [hires
9 that we thought were in the possession of the state
10 attorney's office but had not been provided to the Palm
11 Beach east.
12 Q. Did you get a response -- Was there a
13 response to this letter?
No.
15 Q. Did you review the documents that were
16 provided by the state attorney's office to the Poet?
17 A. Yes. Before -- Sort of in the middle of
18 this, the Palm Beach Post, before I had written, had made
19 a public records request of the state attorney's office,
20 and sore raterials had been pm:Added, and we did go
21 through that, those materials. They did not include
22 those that I remixed in Joint Exhibit 1, which
23 particularly were missing the Dershasitz ccummicaticos
24 and the camunicatiens with Mr. Krischer's office, the
25 FBI and the U.S. Attorney's Office.
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([Phone Redacted]
EFTA02735007
Judge Luis Delgado
September 06, 2022
Page 106
1 Q. So what information -- what additional
2 information was needed that the Post was seeking?
3 A. We wanted to see why the grand jury was
4 used in such a key as to result in a very lenient charge
5 for Mr. Dpstein, as well as the lenient sentence that was
6 part of the rat-prosecution agreement.
7 We )mew from the Post's investigation and
B from other materials we had assembled that there were --
9 there was a grand jury that was enpaneled. In fact,
10 there was two. The first one was canceled, and the
11 second one was conducted, and a witness, a victim did
12 testify. And we were on fairly certain ground that the
13 state attorney's office under Barry Krischer undermined
14 her credibility with materials provided to Mr. Krischer
15 by defense counsel --
16 Q. Did you --
17 A. -- anri we did not get those raterials back
18 from the state attorney's office.
19 Q. Did you review any other infornetion to
20 reach the conclusions about the indictment?
21 A. Yes. I wanted to say that I was not the
22 only one working cn this at Greenberg Traurig. In
23 addition to Mr. Grygiel, Nina Boyajian of our los Angeles
24 office, wow is a First Amendment expert, was also part
25 our team. She is very well versed in First
1 issues, especially when it Wiltb to repre
2 media's interest under the First
3 So we also had paral s ith that
4 responsibility, too. We had led tion
5 transcripts, affidavits that had 'tied in
6 various cases. I persona have spoken with the Town of
7 Palm Beach Canty -- the lm Beach Chief of
8 Police Reiter and sed s testimony with him in
9 civil cases. ined his deposition transcripts.
10 we spdce t the plaintiffs' lawyers in the
11 cases, them did provide us with materials.
12 was a volurninss amount of materials
13 also went back to the criminal case where
14 the als were in the piblic domain and read through
15 those items as well.
16 Q. AM, after this team at Greenberg reviewed
17 all this intonation and did due diligence, what was
18 decided next?
19 A. Ultimately, the team decided that it was
20 necessary to bring a lawsuit to obtain what we call grand
21 jury materials. It's not just simply the transcripts of
22 what occurred in front of the grand jury, but all of the
23 ancillary or corollary materials related to that. And
24 that, as we stated in Exhibit 1, included, but not
25 limited to, the communications where we believe
Page 108
1 Mr. Dershowitz provided damaging information or
2 documentation to Mr. Krischer's office to destroy his own
3 witness in front of the grand jury, which honestly,
4 looking at all of the materials we had received and based
5 Limn my personal discussions with the chief of police of
6 the Town of Palm Beach, we came to the ccoclusion
7 Mr. Krischer had ahzased his authority as state attorney.
8 Q. When did the due diligence process start
9 and when did it end as far as reviewing the facts?
10 A. Started in the summer of 2019, and it --
11 Well, the first phase resulted in he lawsuit, and that
12 contained hundreds of hours' work, not only
13 legal work, but, as I sa ual tigatory work as
14 well. But it contin fter the lawsuit had teen
15 filed as well. We in case we found something
16 new, and ulti did ird new things out in this
17 case, which I an add later, but there were new
18 revelations t occurred.
19 • And the initial omplaint was filed in...?
20 The end of November of 2019.
21 Mat legal research was done before filing
ini/tial complaint? And that was for the statutory
under 905.27.
A. Sure. Ilrz way we divided the work between
myself primarily and Ms. Boyajian was that we would
7 Page 109
1 handle the First Amendment issues in the case. So the
2 U.S. Supretre Cart cases involving the rights of the
3 media to be the public surrogate or be the public
4 mouthpiece and to obtain and participate in all facets of
5 criminal proceedings, she helped re and provided that --
6 I was aware of all of that, but she certainly had a
7 greater in-depth knowledge than I did. I was tasked with
8 the responsibility of fleshing out Section 905.27 of the
9 Florida statutes primarily.
10 Q. What did you personally research to flesh
11 out Florida Statute 905.27?
12 A. I read every word of Chapter 905. I looked
13 at Law Review articles. I remember one from Catholic
14 University, Valparaiso and ethers about the grand jury
15 process, grand jury secrecy, both federal cases and state
16 (sees. I found every reported case under 905.27, which
17 particularly dealt with the issues that we were
18 discussing before and that Mr. Arenberg testified about,
19 and that went back to even the predecessor statute to
20 905.27, which is into the 1920s. Azri I tried to find
21 legislative history on the statute, but there wasn't any.
22 So I amassed 50, 60 cases under the statute
23 going back from the '20s, '30s, '40s, '50s, '60s, et
24 cetera, under 905.27. I read all of them
25 Q. It sands like a great deal of research,
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([Phone Redacted]
EFTA02735008
Judge Luis Delgado
September 06, 2022
Page 110
1 but did you engage in any other research before filing
2 the initial complaint?
3 A. Well, federal as well, not only under the
4 state, but I wanted to see, you know, who to sue, to be
5 honest with you, in this case. we had a debate amongst
6 ourselves as to who the proper defendants were going to
7 be, and my principal responsibility was deteminirg under
B Florida law who that would be.
9 So I had extensive eicperience as an
10 assistant attorney general on suing, at least in
11 defending state officials in not only 1983 cases, but
12 many other type of cases where state officials are sued
13 in their official capacity. So this was certainly
14 nothing new to ne.
15 I probably handled 3, 400 cases like that,
16 all on the defense side. So I was very familiar with
17 arguments of who was the proper party and the role of a
18 state official in litigation.
19 So what did 1 do? I went to see wtather
20 there were other 905 cases, Chapter 905 cases where state
21 officials had been sued, and in particular I ford two
22 cases. the was a state case and one was a federal case.
23 The state case was James vs. Wille and, coincidently,
24 actually involved the predecessor to Barry Krischer,
25 that case involved the beating of an inrate at the
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Beach County Jail out by Belle Glade, and
cel)ght grand jury testimony, and the
named as a party in the case and,
in the case as to whether or rot
the statute -- you know, the ext
arguments opposing such.
Q. So we're
you relied utxe
A.
MU a
cipated
urder
and rode legal
shout same of the cases
mining that the state attorney
ty defendant, and I wanted to pull up
as vs. -- Was it the James vs. Wille
Yeah, James %T. Mille, correct.
Q. And that's txhibit 36. Cm you just let me
know if achiblt 36 is the case you were talking about?
A. Yep, that's the case.
Q. And were there any other cases you relied
upon specifically with regard to the state attorney
necessarily being a party?
A. Yes. An 11th Circuit case called In re
Grand Jury. It's a Federal 11th Circuit Court of Appeals
case.
MS. WHETSTONE: And that's in Your HOnor's
binder, the Authorities binder at tab 11. We'll
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Page 112
pull that up.
BY MS. WHETSTONE:
Q. Is that the In re Grand Jury case?
A. Yes, that's CFR case.
Q. So what were the three -- what were the
tenons the state attorney was named a defendant?
A. Well, this case particularly, the state
attorney was Eras Broward County tamed in this case.
It's a little explicated facts, but essentially there
was a federal grand jury that issued a subpoena to the
Broward County State Attorney s ng state attorney
grand jury materials for a pa investigation, and
the Broward 0ounty atto.i you n see here,
participated in this objected to the release of
such under 905.27.
cularly interested in the
language from his which said that the state
attorney's vol essential one because his or her
role rotect the grand jury process, utich
jury secrecy.
So, based upon the James vs. Wille case and
and my background in defending state officials,
t that the state attorney here in his official
apaeity was a necessary party because someone had to
advocate one way or the other for grand jury secrecy if
Page 113
1 the state attorney decided that's what he wanted to do.
2 But, if we didn't cane the state attorney, we were
3 denying that state official and that office the right to
4 object under secrecy laws.
So the purpose was to allow the state
6 attorney, if he chose to do so, to object to the
7 disclosure under 905.27 and to advocate for the state
8 secrecy interest, and that was a prime issue of why he
9 was named.
10 Q. Were there other reasces?
11 A. Well, we weren't sure what the state
12 attorney's office had. We knew that at one point the
13 state attorney's office had grand jury materials because
14 that's -- under Mr. Krischer that's what had occurred.
15 lie presented this to the grand jury. So we weren't
16 completely sure uto had what.
17 So we also believed, and I still believe,
18 that the statute does not prohibit the state attorney
19 from requesting the state attorney to look at grand jury
20 materials, not disclose it to the public, but merely to
21 disclose it to the state attorney if the state attorney
22 wanted to look at it.
23 So we were hopeful that, if the state
24 attorney was interested in looking at these materials,
25 that he would say that he had the right to look at them
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([Phone Redacted]
EFTA02735009
Judge Luis Delgado
September 06, 2022
Page 114
1 under 905.27 and then, if so, ask the Court for an
2 in-camera review before release to the public.
3 So those are the three issues we were
4 concerned with.
5 Q. Did Greenberg Traurig conclude that the
6 state attorney was a necessary party to this case
7 regardless of whether it bed possession of the grand jury
8 materials?
A. Yes.
10 Q. kid was that conclusion a yes?
11 A. Yes, it was.
12 Q. So, after the complaint -- the initial
13 complaint was filed in November of 2019, were discussions
14 had with the state attorney's counsel and the counsel for
15 the clerk?
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17 Q. What were those discussions?
18 A. Well, we had discussions about the case,
19 particularly where this is going, did they have
20 objections and, if so, under what basis did they have
21 objections.
22 Q. After the complaint -- the initial
23 complaint was filed, what position did the state attorney
24 take in the case?
25 A. Took two Tcok two positions. He f
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an answer, and that answer contained a cot
Q. Backing up. Sorry. Af
complaint was filed, what was the
position taken by the state atto
complaint, just the Count 2?
A. Okay.
Q. Sorry, just
A. His ition 1p that grand jury secrecy
was preeminent 905.27, and that statute barred the
release of . He also argued that the
statute u rntive where there was a pending
civil ng criminal case, and since the
was not pending civilly involving the Post,
or the minal case, there was no criminal case in Palm
Beach County, we didn't have any position or standing
under the statute to seek the materials on behalf of the
Palm Beach Post.
Q. Did the state attorney file a motion to
dismisstheinitialcomplaint?
Yes.
What was your reaction to that? Q.
A. Well, I was hopeful that they wouldn't
object or seek to dismiss it, but I understood that they
had a statutory obligation to protect secrecy,
so I didn't take it personally or anything like that. I
Page 116
1 understood the role that they were playing because that
2 was the role we gave them the opportunity to play in this
3 case. So I was neither surprised, rertpset that they
4 played that role, because that's the opportunity we gave
5 them.
6 Q. Did the clerk file a motion to dismiss the
7 initial complaint as well?
8 A. Yes.
9 Q. After the state attorney filed his motion
10 to dismiss the initial complaint, what did the Post do in
11 response?
12 A. After the init 1, we filed an
13 anerdhent to the -- to t lain -
14 Q. Did you oak at whether there were
15 other causes of action assert?
16 A. to develop the First
17 Amanclrent iss in rte e depth and argue that the Post had
18 rights under Amend:art, as well as the statute,
19 in with the statute to obtain the materials,
20 aoganent that I had developed which was
21 rt has inherent authority as the ultimate
r of the grand jury system under the Florida
itution to prevent abuse of the grand jury system,
we felt that the Court had such authority. :bat was
the Clayton case that I was relying on.
5 Page 117
1 Q. we're going to pull up Exhibit 9, which is
2 the amended complaint in this natter.
3 Could you confine to me that's the first
4 amended complaint/
5 A. Yes, I see that. That's or. the board here.
6 Yes, it's in front of me as well.
7 Q. And we'll turn to it, but the state
8 attorney answered Count 1 of this mended complaint,
9 which was the count for declaratory judgment; is that
10 correct?
11 A. Mat is correct. They 'roved to -- Yes,
12 they moved to dismiss Count 2, the purely statutory
13 claim, and they answered the declaratory judgment which
14 was the mixture of First Amendment, statute, inherent
15 authority of the Cana.
16 Q. What do you recall about reviewing the
17 answer to the first mead complaint for declaratory
18 relief?
19 A. Well, they continued to oppose the release
20 of the materials onder 905.27 asserting grand jury
21 secrecy and asserting that we didn't have a claim. under
22 the statute. I did rote that they adnitted in
23 paragraph 72 that the case was brought in good faith, and
24 that's particularly the declaratory jutpent one. That
25 stood out to me.
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([Phone Redacted]
EFTA02735010
Judge Luis Delgado
September 06, 2022
Page 118
1 Q. We'll pull that up. I think we've Seel it
2 a couple times. We'll pull it up.
3 Please let an bra if this comparison of
4 Exhibit 9 and Exhibit 10 is the paragraph you're talking
5 about.
6 A. Right, right, yes, that they refused to
7 provide access. That's through their objection to the
B clerk to testimony, minutes and other evidence. Again,
9 this was not just simply transcripts. It was such
10 broader than that. And that a good faith dispute exists,
11 and they admitted all of that.
12 Q. Did Count 1 for declaratory relief seek to
13 force the state attorney to produce documents that he did
14 not have?
15 A. No.
16 Q. Did the state attorney's position that his
17 office did not have possession or custody of the grand
18 jury materials end the need for his office to be a party
19 to the declaratory relief claim?
20 A. No, and really the proof of that is what
21 actually occurred, which is they moved forward with their
22 motion to dismiss and ultimately a notion for summary
23 judgment.
24 So they opposed the release of the
25 materials, as was their right, under the statute
1 asserting grand jury secrecy. So it actua
2 we put them in the case, which is to
3 opportunity on behalf of the offi o assert
4 grand jury secrecy, which is uha they So, in
5 effect, it worked. They cook f the
6 opportunity and asserted t we were not entitled to it
7 under the statute's grand provisions.
8 Q. Co 8th, 0, Judge is -- did Judge
9 Marx enter an the motion to dismiss Count 2
10 under F .27?
11 A. id.
what was -- what was the ruling?
13 She determined that the Post lacked --
14 well, the statute did not create a private right of
15 action, that it was limited to those who were seeking the
16 materials in the pending civil case and a pending
17 criminal case, so she did it on a very narrow ground.
18 Q. That order sorry.
19 A. Go right ahead.
20 Q. Mr. Mendelsohn, go ahead.
21 Okay, that order did not address the
22 declaratory judgment claim in Count 1, did it?
23 A. ND.
24 Q. When did the state attorney send its
25 initial what he calls place-marker 57.105 demand letter
Page 120
1 and motion for fees?
2 A. Within hours of the order from Judge Marx
3 was issued, I believe, on June 8, 2020.
4 Q. And at that point why was the state
5 attorney kept in the case?
6 A. Well, they were still objecting to
7 disclosure under Gault 2, under the declaratory judgment.
8 They were still asserting that grand jury secrecy and the
9 statute could not be overcome by the First kendrent or
10 by the Cant's inherent authority, and that the Cant's
11 inherent authority was limited he statute, which we
12 obviously thought was sort of r way, that the
13 statute or the legislator d not it the Court's
14 inherent authority judiciary had its rights
15 and the legislature s. So that issue still
16 remained.
17 Q. you write to the state attorney's
18 counsel and 1 Poet's reasons for continuing to
19 inch tate attorney in the case?
20 Yes. That's ray letter of June 23rd, 2020.
21 And we'll go ahead and pull that up.
t 16.
Is that the letter that you're referring
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Page 1:1
Q. And your letter set forth the reasons why
the state attorney was named as a party in the case --
A.
Q. -- and continued to be named?
Yes.
Q. Did the state attorney's office ever
address the second reason for keeping the state attorney
in the case in swam to this letter?
A. : -.ever received a wr'--Pr response :o this
letter.
Q. And that second reason was that he was the
-- that the state attorney's office was an official
tasked with protecting grand jury secrecy?
Correct.
And, in your letter, did you cite a case to 0.
the state attorney?
A. Yes. I cited to In re Grand Jury
Proceedings, the 11th Circuit case.
Q. Did you have discussions with the state
attorney's counsel after this point, after writing this
letter?
A. Yes, with Mr. Myler.
Q. And what were they?
A. What are we going to do about this case
essentially. Is the state attorney going to gone us?
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([Phone Redacted]
EFTA02735011
Judge Luis Delgado
September 06, 2022
Page 122
1 Is he continuing to oppose us? Because I never received
2 a response to my Jtme 23rd letter, and I wanted it to be
3 understood that we honestly believed that the state
4 attorney had a necessary role to play in their official
5 raparity. We were hopeful that they would take a neutral
6 position, but they remained adamant that they had to
7 protect grand jury secrecy woder the statute, which we
respected.
9 Q. And I don't want to )now the substance of
10 settlecent discussions, if there were any, but did
11 settlecent discussions go on with the state attorney's
12 counsel after the Jima 23rd letter?
13 A. Yes. Yes, they did.
14 Q. And is that indicated on the timeline here
15 of June, June 8th, 2020, to October 15th, 2020?
16 A. Yes. With M.T. Wyler, yes.
17 Q. It. Wyler.
18 A. He was a very nice Mr. On the phone. We
19 had very gccd rahversations, very professional.
20 Q. The state attorney filed his motion for
21 fees on July 1st, 2020; is that correct?
23 Q. And is this the state attorney's first
24 motion for fees that was filed co July 1st, 2020?
A. It is.
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Q. Did the initial 57.105 mots
forth any of the grounds for the mai
A. No, it didn't. It
entitled to 57.105.
Q. So, after this pan
Post and Greenberg seek
A. Yes.
Q. And
A.
Q.
A.
well, fi
they were
-- did the
tram the clerk?
the litigation?
did you seek from the clerk?
ed to know whether or not any --
r the state attorney under
had asked for any of the materials that the
clerk had, and, also, whether the FBI and U.S.
Attorney's Office had asked the clerk to provide such
materials. And the clerk indicated to us in leavmme to
a request that the clerk's office had done so, though
they were vague as to why and htL-1.
Q. And what -- did you serve
interrogatories --
A. Yes.
Q. -- sad document --
A. Requests, yes. We wanted to see a leg of
the materials in the sealed -- that the clerk
had sealed. We hoped that there was a log indicating
Page 124
1 what was in there, not really specifically what was in
2 there, but by category, whether it was a transcript,
3 whether there were exhibits and/or whether there were
4 affidavits or whether there were deposition transcripts.
5 Whatever there was in there, we wanted to understand.
6 The clerk had responded that they don't
7 keep a log, so they couldn't tell us unless the seal was
8 broken what was in there.
9 Q. In August of 2020, the state attorney's
10 office filed a motion for summary udgnent; is that
11 correct?
A. Yes.
13 Q. And Exhibi •.4 leese7 Is this the state
14 attorney's notice for udgment that's on the
15 screen?
16 A. es.
17 Q. support of this motion for summary
18 judgment, did file an affidavit in support?
19 He did.
20 MS. CFAs IE: If you could go to 18,
21 se.
Q. Arel is 18 the State Attorney Dave
s affidavit in support?
A. It is.
Page 125
1 Q. At this point, after the affidavit had been
2 filed, had the state attorney responded to another one of
3 the reasons that he had been named as a necessary party
4 to the action?
A. No. They focused exclusively on possession
6 rather than their position protecting the grand jury's
7 secrecy issue which they had advocated for.
8 Q. So did the state attorney's affidavit and
9 motion for summary judgment address In re Grand Jury
10 Proceedings or any of that -- any point in your letter
11 about his office being able to prevent the clerk from
12 releasing grand jury materials?
13 A. No, they never resporded to that.
14 Q. Was there still a factual issue -- At this
15 time in August 2020, was there still a factual issue as
16 to whether the state attorney had physical possession of
17 copies of grand jury materials?
18 A. Well, we knew at one point Mr. Kristher
19 obviously had to have had such. We also had -- We were
20 of the Belief that there were ccontracations, on very
21 strong grounds, between Mr. Krischer's office and
22 Mr. Dershowitz and other defense counsel, as well as the
23 FBI and U.S. Attorney leading up to and including the
24 indictment, the non-prosecution agreement, as well as the
25 sentencing report.
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([Phone Redacted]
EFTA02735012
Judge Luis Delgado
September 06, 2022
Page 126
1 We never received any such, and we 'craw
2 they were out there. Exactly who had them, where they
3 were, we weren't sure. We learned in hindsight that the
4 U.S. Attorney's Office had been provided with such by the
5 clerk's office. This is the Palm Beach County clerk's
6 office.
7 Q. So fast forwarding a bit to October 2nd,
8 2020, did Greenberg and the Post -- sorry -- did the Post
9 file a response to the state attorney's first
10 place-narker 57.105 motion?
11 A. We did.
12 Q. And if you could pull up Exhibit 20.
13 A. Which one is this exhibit?
14 Q. 20.
15 A. That's what I thought. Ckay.
16 Q. Is this the Poet's response, maroranchmo of
17 law of the plaintiff to the state attorney's --
18 A. That is correct.
19 Q. -- 57.105 sanction motion?
20 A. Yes. I drafted this, yes.
21 Q. Co page 8 --
22 MS. WdE15-IONE: Gerard, do you mind going
23 to page 8.
24 BY MS. WHEISTCRE:
25 Q. Did you again raise the state at
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ability to object to release of grand j
A. Yes. I cited to In re
Proceedings again.
Q. If you look at the
8? Is that where you cited to?
A. Correct.
Q. And at this
bad not regaled this
is that co
A.
17a9a
state attorney still
he was named as a party;
on October 14th, 2020, did the
state a reply to this response?
Yes.
MS. 70IITGENE: If could you pull up
Exhibit 21.
BY MS. WIGMOTDONE:
Q. Is this the state attorney's reply in
support of the first place-marker motion for fees?
A. Yes, it's in respc...se to their June 2020
motion for fees.
Q. So this is not a reply to the 57.105 motion
we're here on today, right?
A. That's correct.
Q. This is a reply to the original June
place-matter motion for fees, correct?
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Page 128
A. Correct. What happened is the state
attorney never noticed the first motion they filed for
fees for a hearing, and they still haven't done that. So
it's never been noticed for hearing.
There was a little dispute between myself
and Mr. Tyler as to whether or not the fee motion that he
had filed in June should be heard first or their motion
for =wary jucklnent should be heard first, and there was
a caseTanager:ant conference beforeJudge Hafele, and
Judge Hafele decided that the state attorney could decide
the order of when that would So not knowing when
-- what hearing would go fi ed a response to
their fee motion that In June, and that
was Exhibit 20, and scalded in Ekhibit 21.
Q. And I attention to pages 1
through 2 of the state attorney's reply --
A.
e it's highlighted on the
Yep, I see that.
It says, 'Nonetheless, the state attorney
lactic@ and never has had any objection to the
releasing the records sought by the plaintiff.'
Was this the first time the state attorney
-- the state attorney stated his office would not object
7 Page 129
1 to the release of grand jury materials if ordered by the
2 Court?
3 A.
4 Q. So, after your reply -- sorry -- after your
5 response on October 2nd, then on October 14th, the state
6 attorney for the first tire stated in a filing that he
7 had no objection to the production of Epstein grand jury
8 materials by the clerk?
:hat's accurate, yes.
10 Q. Was this a change from the state attorney's
11 prior position about releasing grand jury materials?
12 A. Absolutely.
13 Q. Bowwouldyoudescribe the change iron the
14 initial -- from his initial response to the initial
15 =plaint to this reply?
16 A. Initially they fulfilled why they were in
17 the case, which is they objected to the release of the
18 materials under 905.27, and now they were taking a
19 neutral position, and they were no longer advocating the
20 m.precacy of 905.27 and its secrecy provisions as a bar
21 or prevention or preventive for the release of grand jury
22 materials. They were no longer taking that position.
23 They were no longer taking any position.
24 Q. What was your reaction to this change?
25 A. Well, I was pleased.
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([Phone Redacted]
EFTA02735013
Judge Luis Delgado
September 06, 2022
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Page 130
Q. Did you send a letter --asettlement
letter on October 15th in response to this October 14th
position in the reply?
A. Yes. I did it pretty quickly after I saw
it.
Q. The next day?
A. The next day. Well, I started writing it
on the 14th, but, yes, we sent it on the next day.
Q. Okay, and I'll pull W Exhibit 22.
Is this your letter to Mr. Ifylerc with
regard to the reply?
A. Yes. Since they had changed to a neutral
position, I didn't see a point in discussing whether or
not they should remain in the case, and that's %%tat the
purpose of this was.
Q. AM in it you say you were pleased about
than changing --
A. Yes, yes. In the sewed paragraph, I said
I was pleased to read that they -- the state attorney's
clear and unemivocal statement in their response filed
yesterday that their office will not oppose the Post's
request for access to the Jeffrey }stein grand jury
materials. I was pleased.
Q. Once the state attorney's office said
it would no longer object to release of the grand j
materials by the clerk, what was
the Poet's response?
A. We had a team meet
discussion with the Post as to
attorney should remain in the c
first tine, Mr. Aronberg' ffidavit. He had previously
stated that position, but irst time in a
pleading or an of vit fi in the case, he said he
clearly didn't session. AM he's now taking a
neutral a of the change in position that
this nest now created, we had a very serious
discussl whether or not he should remain in the
remember, one of the necessary party prongs
that I mentioned previously was to give Mt. Ai .erg
the opportunity as state attorney to mice either his
objection to the release or his neutrality or maybe his
support.
Now he decided to change from opposition to
neutrality, and, since that has the case, we determined
ultimately to drop him from the case that there was no
-- he had exercised his option and made a decision, and
we were happy that he had done so.
Q. Was -- What date was the state attorney
dropped as a party to the action?
A. It was in October. Was it October 21st?
ly
the state
for the
Page 132
1 Q. Neill pull up Exhibit 23.
2 A. Okay, I've got it in front of me it was
3 October 21st, 2020.
4 Q. And is this Exhibit 23 the notice of
5 dropping the state attorney as a party?
6 A. Correct.
7 Q. After this, 19 days after this, did the
8 state attorney file an amended notice for fees under
9 57.105?
10 A. He did.
11 Q. Is that the motion re here on today?
12 A. Correct. That' y one that the
13 state attorney has noti
14 Q. We're Exhibit 25, and, once it's
15 up, I'd like you to this the amended notice
16 for sanction or today?
17 A. es.
18 Q. Wm this amended notion ever served on you
19 or the Poet anytime before it was filed?
20 11 A. too.
21 Does the amended motion set forth new and
BCs for the motion for sanctions then compared
first what they call place -marker notion?
A. Pleolutely.
Q. What were sane of those new arguments?
Page 133
1 A. Well, ultimately the major new argument was
2 that he now had neutrality in the case. That was a
3 massive change in the position of the state attorney
4 which was not the situation back ht•en they first made
5 their place -holder motion, and this is the words they
6 used back in June. This was a sea change as far as we
7 were concerned in the status of the case.
8 Q. AM you told the state attorney that was
9 the basis for its joinder back in the beginning of the
10 case?
11 A. As a necessary party, yes. And, slim they
12 were no longer advocating secrecy and row had adopted
13 neutrality, that's why we dropped them from the case.
14 Q. And I'll move to what I think is going to
15 be my last exhibit, the final judgment, which is
16 Exhibit 30.
17 A. Yes.
18 Q. Did the Rost -- So did the Post file a
19 notion for sumary jndgaent against the clerk --
20 A. Yes.
21 Q. -- as to the declaratory relief claim?
22 A. Yes. They were the remaining part) , in the
23
24 Q. And Judge Hafele heard element on that
25 notice for smeary judgment?
race..
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([Phone Redacted]
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Judge Luis Delgado
September 06, 2022
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Page 134
A. He heard it for about two and a half boars,
2 yes.
3 Q. And was this the same declaratory judgment
4 count that had been asserted against the state attorney
5 that had been dismissed against him after he said he had
6 no objection to the clerk releasing documents?
7 A. It was Count 1. That was the sane cart
B that we had against the state attorney and the clerk, and
9 that had been dropped against the state attorney at the
10 time I argued the motion for summary judgment in front of
11 Judge Hafele in September of 2020 or August of 2020.
12 Q. And Judge Hafele entered an order on a
13 motion for surnnary judgment which been this final
14 judgment; is that right?
A
16 Q. And going through it, on page 5, the Court
17 noted that the Post's position was -- Well, I'll ask you,
18 what was the Court's reaction in the final judgment to
19 the presentations given by the Post?
20 A. Ultimately Judge Fafele determined that his
21 hands were -- while he recognized that the Court had
22 inherent authority and that inherent authority covered
23 the supervision of p uwecutorial abuse of the grand jury
24 process, he felt constrained by the statute, which was
25 905.27. So he felt ultimately that he could not
1 inherent authority because of the limitat
2 thought 905.27 contained, though, in
3 egotistical, he was very effusive
4 Greenberg Traurig had done, as de doe by
5 the clerk's counsel.
6 Q. So I'll draw-attention to page 7. It says,
7 'The newspaper makes strockergerients to advance its more
8 expansive caw of Section 905' --
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then page
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Coun>19,p,
A. Yes.
Q. And that's the count we're here on today?
A. Correct. That matter is on appeal. The
final judgment is on appeal.
Q. Thank you. That was my next question.
Okay.
Okay. Okay, one last question -- sorry --Q.
of furthering justice.' And
'The Court acknowledges the
t and sincere arguments.'
Was that -- Was that comment with regard to
Did you have any discussions with the
editorial side of the Post having anything to do with the
decision to sue the state attorney?
Page 136
A. Noce. There was a firehmll between the
2 legal arguments we were making here and whatever the Pest
3 was writing both editorially and factually. I had
4 absolutely no conversations with the Post, nor did any
5 meter of my team as to what they were going to write.
6 It's not ty role to tell the paper what it wants to, or
7 not, write or not write, so the legal positions that we
8 adopted in this case were -- were the positions that we
9 as Greenberg IYaurig and the paper carte to the conclusion
10 of based upon the facts and the law.
11 As to what the Post y have wanted to
12 write or did write, I have z into that, nor did
13 Mr. Grygiel, nor did Ms. didn't even know
14 what was going to be t oil I read it in the
15 paper, so I did not they were going to put
16 in the paper.
17 Q. t question. Did suing the state
18 attorney in caai have anything to do with a personal
19 t the state attorney?
20 Well, I voted for Mr. Arenberg. No.
21 So no?
A. We haveatutual friend. So I have no
against him at all. I'm not happy he has Ile
=big up here, to be honest with you, but, you knew, I
understand why he has me up here. Iget that. He's ret
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Page 137
happy being associated with Mr. Epstein. The ran was
reprobate. He was one of the lowest forms of humanity.
So even having my rare in an article, even if I'm not
accused of something, I can understand why he's not happy
about it.
But I don't -- he didn't do this out of
animus or lack of preparation. This was a sober decision
against scmeone in their official capacity. I'm sorry
that he feels personally offended by this, but we took
great pains to make sure that there were no allegations
ir. the wended complaint and the complaint accusing him
of anything or of any wrongdoing of any kind because
that's just not the case that we have in front of us.
MS. WHETint1NE: Thank you, Mr. Mendelsohn.
Sorry, we went a little long.
THE COURT: No, it's okay.
Are you going to finish in the next 10
minutes?
MR. WYIER: No, Your Honor. That's
impossible for me.
THE CCURT: So then we're not going to get
started.
MR. WYIER: I don't think it would be
worthwhile for me to start and then stop in 10
minutes. It's going to take me at least
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Page 138
30 cinutes, probably more like 45.
THE COURT: Okay, so, you know, fray krelia
Island to here is five hours?
YR. WYLER:
CCURT:
YR. EISR:
Yes, sir.
You're almost in Georgia.
Exactly. Your Honor, I will be
here whenever you need ee to be here. I'll make
it happen.
THE COURT: Thursday or Friday?
PR. WYLER: Honestly --
ME OXIRT: How about Thursday?
PR. 'TILER: -- how about Thursday? Yeah,
Thursday would be better.
THE CYJRT: Okay, all right, we'll care
back in Thursday.
YR. M:NDEL9CFRI: In the afternoon, Your
Honor?
THE OXIRT: ace back Thursday, probably
1:00 p.m. Give me one minute.
(Brief interruption.)
THE COURT: All right, so the only thing
left is cross examination, redirect, and then are
the parties going to write closing argrents?
YS. ivirmISTCNE: If Your Falco would prefer
it, we'd be fire with that.
THE 03URT: I prefer closing argaren
are written. I think things are more
You know, I thick the logic is ti
parties don't mind writing closi
would prefer that.
Okay, do you want t
argument? I man, I can
know what you're
M.
direct
the tes
and a
ring your closing
e you probably
If we could finish the
just make sure we have
we will have the transcript
closings or make sure that we
do you think?
WYLER: Your Honor, it's going to be
really hard for Be to drive back, and Urn hand
write it and then drive back down here again.
THE COURT: Why don't we do this: Cross
examination, redirect. You'll give me a closing
argument, and you can supplement yoar closing
amprents in writing. If I need to have an
additional hearing, we can do that via Zoom since
the evidence and presentation will haveconcluded
YS. hIETSPnVE: Sounds good.
COURT: Sound good?
YR. WYLER: Sounds good, yes.
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1 STATE OF FLORIDA
4 COUNTY OF PALM BEACH
Page 140
7HE CURT: All right, so we'll ire back
Thursday, 1:00 p.m.
HEE WrflrS: Pm I excused, Your Honor,
from the stand?
THE COURT: Yes.
7HE 14171.e S: Thank you.
THE CCURT. I /WS we have guests. You
krow, the Wall Street Journal will write
reprobate. It's a big word. It's a big word.
All right, anything else?
Have a great day, eve 're in
recess.
(The hearing adjou9S 4:53 .m.)
CO
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Page 141
COURT CERTIFICATE
I, Lisa Begley, RPR, RMR, certify that I
was authorized to and did stenographically report
the foregoing proceedings and that the transcript
is a true and complete record of wry stenographic
notes.
Dated this 12th day of Septonber. 2022.
lEkbighti
Lisa Begley. RPR, RMR
www.phippereporting.com
([Phone Redacted]
EFTA02735016
Judge Luis Delgado
September 08, 2022
IN THE CIRCUIT COURT OF THE 15TH JUDICIAL CIRCUIT
IN AND FOR PALM BEACH COUNTY, FLORIDA
CASE NO. 50-2019-CA-014681-XXXX-MB AG
CA FLORIDA HOLDINGS, LLC,
Publisher of the PALM BEACH POST,
Plaintiff,
vs.
DAVE ARONBERG, as State Attorney
of Palm Beach County, Florida;
SHARON R. BOCK, as Clerk and
Comptroller of Palm Beach Count
Florida,
Defendants.
A Cos
TRANS F CONTINUATION OF
G PROCEEDINGS
RE: Defendan
BEFORE:
271843
ye Aronberg's Amended Motion for
Attorneys' — Fees
: Thursday, September 8, 2022
1:06 p.m. - 2:42 p.m.
PALM BEACH COUNTY COURTHOUSE
205 North Dixie Highway
Courtroom 10D
West Palm Beach, Florida 33401
LUIS DELGADO, JR. , Circuit Judge
Stenographically reported by:
Lisa Begley, RPR, RMR
www.phippsreporting.com
([Phone Redacted]
EFTA02735017
Judge Luis Delgado
September 08, 2022
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Page 143
APPEARANCES:
On behalf of the Plaintiff:
GREENBERG TRAURIG
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777 South Plagler Drive 3
Suite 300 Eaet
Kest Palm Beach, Florida 33401 4
[Phone Redacted] 5
BY: LAUREN R. WHETSTONE, ESQ.
whetstonelegtlaw.eom 6
MARK P. BIDEAIL ESQ.
bideaumegtlaw.com
GERARD BUITRAGO. ESQ.
buitragogsgtlaw.com
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8
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10 On behalf of Defendant, Dave Arenberg:
JACOB, SCHOLZ L WYLER, LLC 11
961687 Gateway Boulevard 12 Suite 2011
Fernandina Beach, Florida 32034 13
[Phone Redacted] 14 BY: DOLGLAS A. WYLER, ESQ.
dougajswflorida.con 15
Also present: Dave Arenberg. State Attorney 16 Defendant
17
Leigh Public Records Coordinator 18 Office of the State Attorney PBC
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1 INDEX
2 WITNESS
3 STEPHEN MENDELSOHN, ESQ.
Cross Examination by Mr. Wy
4 Redirect Examination by Ma
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Non-movant rests
0
Certific epo
4
AGE
146
187
204
8 responded and testified as follows:
9 CROSS
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Page 145
Thereupon,
the following proceedings began at 1:06 p.m.:
THE COURT: All right, please be seated.
All right, announce your presence.
MS. WifftERRCE: Good afternoon, Your Honor,
Lauren Whetstone, and with me, Mark Bideau, Gerard
Buitrago and paralegal, Jennifer Thorson, on
behalf of Greenberg Traurig, on behalf of CA
Florida Holdings, the publisher of the Palm Beach
Etst, the plaintiff, and air witness, Stephen
Mendelsohn.
MR. EYLER: , Your Honor,
Douglas Eyler wi Scholz A
Eyler here on the State Attorney, Dave
Aronberg,
1 right, so we left off with
cross Is that where we are?
: Yes, Your Honor.
MR. WYLER: Yes, sir.
THE COURT: Madam Clerk, please swear in
witness.
Sir?
THE WITNESS: II, I've been sworn in
before.
THE CLERK: Do you solemnly swear or affirm
Page 146
that the evidence that you're about to give will
be the truth, the whole truth and nothing but the
truth?
THE HITE215S: I do.
5 Thereupon,
6 STEPHEN NE2BX2f2101, ESQ.,
7 having been duly sworn by the Clerk of the kart,
er 210 10 BY MR. WYLER:
11 Q. Good afternoon, Mr. Mendelsohn.
12 A. Good afternoon, Mr. Wyler.
13 Q. So I'm going to start off with this: Isn't
14 it true that part of the exhibits that we've all agreed
15 on that are here and part of evidence are some of the
16 portions of our settlement negotiations?
A. There is one letter, yes.
18 Q. Okay. And isn't it true you and I talked
19 several times regarding settlement?
A. Sure.
21 Q. And isn't it also true that, during the
22 pendency of our settlement negotiations, Mr. Aronberg was
23 contacted by the same reporter that the SAO had
24 previously prosecuted for illegal sastances?
25 MS. hIERRTCHE: Objection, Your Honor, no
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Page 147
foundation.
MR. WYLER: That's fine.
THE COURT: All right.
BY MR. XYLEM:
Q. Isn't it true, though, that Mr. Arenberg
and Mike Edmondson contacted you to complain about an
article that was being written about him?
A. No, no. I've never spoken to Edmondson
that I remember.
Q. Well, okay. That's fine. But you did
speak with Mr. Arenberg, right?
A. No. I don't recall speaking to anyone on
this matter, unless he was on the phone with you. Other
than that, no.
Q. Okay, well, then part of when we spoke, and
maybe you didn't knot, Mr. Arenberg and Mike Edmondson
were on the phone with us, but isn't it true that there
was a time, when you and I spoke in settlement
negotiations, that you offered CO hold an article pending
our settlement negotiations?
S. *LIST'S: Objection, Your Mc or,
settlement discussion.
MR. WYLER: They opened the door Co
settlement negotiations by putting it into
evidence.
BY t41.
THE COURT: *at exhibit are
about?
MR. MILER: I don't
exhibit that is part of
exhibit that is not part
offer to the
THE COURT:
is sust
A. absolutely untrue.
an
I do have an
that I will
good then. Cbjecticn
're saying that never happened?
Mr. Aroilerg, through you, suggested
Clement, that the paper would write a
favor article about him if we were able to settle.
You suggested that. I didn't make a comment one way or
the other, but I absolutely advised my client of it.
I don't make editorial decisions for the
paper, so I have no authority to make such.
Q. So you're saying there was never a
conversation between you and I where we discussed
Mr. Arenberg creating a comsat to go into the newspaper
as part of those settlement negotiations where you wanted
us to drop our 57.105 demand and you offered to get an
article held while we determined whether we would do
that?
Page 149
1 MS. WIE7SaCEE: Objection, Your Fanor,
2 ed, corpard.
3 THE CURT: Sustained as compound.
4 BY FR. WYLER:
5 Q. All right, I'll move on.
6 So, in your direct assignation the other
7 day, isn't it true that you stated that you devoted
8 hundreds of hours to the research and development of
9 bringing this Lawsuit?
10 A. Yes.
11 Q. Okay. Arid so, in of that research, you
12 extensively put time into 1 to Chapter 905.27
13 before you brought this
:4 A. Yes, si
15 Q. And,
16 on the motion
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Marx's June 8th order
2 -- Let me scratch that.
Isn't it also true that your client's
complaint alleged awdinst -- that my client was in
presession ox control of the documents that are in this
jest of this action?
I'm sorry, can --
Q. I'll repeat it. Isn't it true that your
t's complaints alleged that my client and/or his
ffiee is in, quote, possession and/or control of the
documents that are subject of this action?
Page 150
A. Are you reading from the amended complaint?
2 Q. That is found at page 117, IIIII stamp
3 masher 117, paragraph 3 of the first amended complaint.
4 I'll be happy to show it to you.
A. Well, if you'll just let me know where in
6 the amended complaint it is, what paragraph.
7 Q. Paragraph 3.
8 THE CURT: What's the stamp?
9 MR. WIER: 117, Your Honor.
10 A. Yes, sir, that's part of what I said in
11 paragraph 3.
12 Bl' RR. WII1ER:
13 Q. But there was an allegation that my client
14 is in possession and/or control of the documents?
15 A. In his official capacity as his office is
16 in possession and/or control of documents that are the
17 subject of this action. And in the prior sentence, :
18 quoted Florida Statute 27.03 which provides for the
19 attorney excuse me -- the state attorney to have
20 authority over grand jury proceedings in the state of
21 Florida.
22 Q. Okay. Isn't it also true in the first
23 amended complaint that your client admitted that it is
24 not -- it is not seeking these materials in connection
25 with either a civil or criminal case aad, therefore,
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Judge Luis Delgado
September 08, 2022
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Page is:
sought unlimited access to the requested materials under
905.27?
A. Again, that's a ccqxu.-cl question. I'm not
sure which one goes first.
Q. Isn't it -- If you would look at
stamp page 135.
A. I don't have the stamps in front of
All I have is the exhibits, sir.
Q. Okay. They should be on there, in the
bottom left corner.
A. Which one is it?
Q. 135.
A. Okay. I'm sorry, what is your question,
sir?
Q. Didn't you admit on that page that you are
not seeking these requested materials in connection with
either a civil or criminal case?
A. A pending -- Right, that is correct.
Q. Okay.
A. The Post was not seeking these documents in
apendingcriminal or civil case involving the Post.
That is correct.
Q. Thank you. And did you also seek unlimited
access to those requested materials for that reason?
A. No, that's not accurate.
Q. If you look -- Would you
at that IIIII stamp I just provided
A. Yes.
Q. I believe it's on
A. Are you looking at
Q. Dh-huh.
A. -- on Exhibi . Es, I'm looking at that,
sir.
Q.
Parnench
0 the S ine then, do you see -- one, two, three --
down, in the sentence that starts with,
'Because..."
if you would look at
0. Okay. It says, "Because the Palm Beach
Post is not seeking these materials in connection with
either a civil or criminal case, it seeks a declaration
that the scope of its use of the disclosed materials it
not limited."
A. Right, not limited to a civil or criminal
case, but that the Post had the right under section (c)
of 905.27 in furtherance of justice. We were always
seeking an in-camera inspection of the documents by the
Court prior to any release to the Poet.
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Q. Did that argurmit succeed in your claim
against the clerk?
Which cce?
Q. That you had no connection with the civil
or criminal case and to get unlimited -- to get unlimited
access.
A. Well, again, we weren't seeking unlimited
access. As I just mentioned, we were always seeking an
in-mina inspection by the Ca= prior to release to us.
So we were not seeking unlimited access, nor immediate
access to the docirrents.
Q. You weren't -- t, we're going to
non on.
Isn't i the other day you
testified that you t because you needed him
not to object yty t for these materials?
A. him not to object? No. I gave
him the opport o do actually three things. One is
to syl r it request; two, they could have taken a
ion; or, three, they could have objected.
Initially, the state attorney's office took
ion to object, and as I think I testified, they
ually changed the position in October of 2020 to
trality.
Q. And you believe that's a proper basis for
Page 154
filing this lawsuit against my client?
A. That they adopted a neutrality position?
I'm not clear ,that you're asking me.
Q. M, no, that you needed him not to object.
A. That I needed him not to object? No --
Q. Unless you rented --
A. I'm sorry, did I step on you, sir?
Q. No, you're fine.
A. No. That I needed him not to object? No,
I gave the state attorney's office the option to make, in
their discretion, to make the decision as to what they
wanted to do vis-A-vis grand jury secrecy. And as I
stated -- You know, if you look at the paragraph you
quoted before, that's paragraph 3 of the first wended
=plaint, I cite to Florida Statute 27.03, which gives
the state attorney the authority over grand juries, and
if you lock at the cases cited under 27.03, there are a
meter of them which say that the state attorney has
very, very broad powers in the conduct of a grand jury,
Q. Thank you, Mt. Mendelsohn. Let's move on.
A. Okay.
Q. In your long practice as an attorney, is it
your understanding that clear, Imarbiguous statutory
language has to be enforced as written?
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Judge Luis Delgado
September 08, 2022
Page 155
1 A. Well, there are circumstances where the
2 courts have implied causes of action. That's the famous
3 United States Supreme Court case of fort v. Ash where the
4 Court said that. even if Congress did not specifically
5 authorize a cause of action, that, in certain
6 circumstances, if Congress did not bar such, you could
7 have an implied cause of action. That cores also for
B Section 10(b)(5) of the securities laws.
9 Q. Okay, but --
10 A. And Florida has that, too.
11 Q. All right. But, in your research. you
12 stated that you rant through 905.27, right?
Exactly. yes.
14 Q. Okay. And you ear across this language,
15 right? I'm going to read this to you: "libel such
16 disclosure is ordered by a Court pursuant to
17 subsection (1) for use in a civil case, it maybe
18 disclosed to all parties to the case and to their
19 attorneys and by the latter to their legal associates and
20 employees; however, the grand jury testimony afforded
21 such persons by the Court can only be used in the defense
22 or prosecution of the civil or criminal case and for no
23 other purpose whatsoever.'
24 You came across that language when you
25 doing the research, right?
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A. Absolutely.
Q. And do you recall my el
as a defence from the beginning, f
interaction, first legal filing
A. Yes, you made a no
that the Post did not --
Q. wo.21 take
A. Wel
and I was
inte
that
smiss arguing
t was a yes or no.
ask me if you client did that,
t. So the answer --
it as a yes cc no.
A I finish my answer without
The answer is, yes, you made a motion to
dismds der 905.27 and asserted that the materials
could only be used in a civil or criminal case. Of
course, we disputed that because of (c), which is the
furtherance of justice language.
Q. And did that did that argument -- was
this argument successful in your action against the
clerk?
A
Q.
It was never addressed by the Court.
So you're telling me that
never brought up 57 -- or, 905.27 in his final judgexot?
A. No. I'm suggesting the way you
characterize it was not the way Judge Hafele decided.
6
Page 157
1 Judge Hafele, in his final judgment, said that he felt
2 constrained by the statute vis-a-vis his inherent
3 authority as a judge.
4 While he wanted as a judge to exercise his
5 inherent authority to allow for disclosure, he felt that
6 the statute constrained him in doing so because it did
7 not expressly so state that it could be used outside of
8 the civil or criminal case. That's what I believe Judge
9 Hafele said.
10 Q. Do you have a ow 4 the final judgment in
11 front of you?
12 A. Yes. 'Fat it.
13 Q. It's tab 3
14 A. Okay
15 Q. All Xor, 1477.
16 A. spacer makes strong arguments
17 to advance
18 sir. No, sir.
19 I'm sorry.
20 No, sir. Let me redirect -- Let me direct
21 first paragraph here under Emphasis Added? Co
it says, 'Reading subsection (1)(cl..."?
A. Right.
Q. Could you read that until the cite for the
seadad complaint, please?
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Page 158
A. Right. "Reading subsection (11(c),
furthering justice," which is in quotes and parentheses,
"in tandem with section (21, it is evident that the
phrase, quote, furthering justice, e-4 quote, is to be
interpreted in the context of seeking disclosure of the
grand jury materials for use in a pending criminal or
civil rase.*
Q. my going.
A. Yep. "The newspaper acknowledges that it
is not seeking the disclosure of such materials for such
purpose. Instead" --
Q. Tbat's it. Thank you, Mr. Mendelsohn.
A. But it's not the --
Q. Mt. Mendelsohn --
TIE STENORAPER: I'm sorry, I can't take
this.
CCORT: Gentleman, gentleman, we're
here for trial, and you're being cross-examined --
TICE WTiNESS: Your Honor, maybe, for the
rule of completeness, I would like to be able to
read the entire sentence.
THE COURT: So right now you're testifying.
It's your witness. What's your next
inquiry?
PR. WYIfl: manic you, Your Ibnor. May I
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September 08, 2022
Page 159
1 continue with this final judgment, Your Honor?
2 BY MR. WYLER:
3 Q. I would like you, Mr. Mendelsohn, to flip
4 to page 1479 of that same final judomasit. At the very
5 top of that page, could you read that first sentence for
6 me, too -- for me?
7 A. 'Subsection (2) clearly limits
8 Section 925.27's (sic) scope as to the instances in which
9 grand jury testimony or materials need to be disclosed
10 for use in a criminal or civil case."
11 Q. And then -- You can keep going.
12 A. 'Section (2) provides that, once grand jury
13 testimony is disclosed in the course of a court
14 proceeding, it is then open to unlimited dissemination.
15 Before that otters, the Court must determine that one of
16 the three needs prescribed in section (1) is present in a
17 criminal or civil case that requires disclosure. There's
18 nothing in Section 905.27 that gives the Court carte
19 blanche,' which he has italics, 'authority to release
20 grand jury materials in any situation that might bear
21 some relationship to, quote, furthering justice, end
22 quote, in its broadest sense."
23 Q. 'hank you. All right, so moving on from
24 905.27, in your extensive research of this case, did you
25 also care across Chapter 905.17?
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A. Sure.
Q. Okay, and let me to w, sir.
MR. WYLER: This is f -- or, 33
of the Authorities, Your 33.
BY MR. WYLER:
O. Do you
you like me to provide
A. It'
of attorneys'
Q.
BY t
Mr. Mendelsohn, or would
and applerental affidavit
costs?
have the Authorities binder?
don't have the Authorities binder.
WYLER: May I approach?
THE COURT: Yes.
Q. Here's a copy of 905.17.
A. Yes, I'm familiar with this provision.
Q. Great, okay. And than the very last
sentence of that first paragraph, it starts with. •The
notes, records and transcriptions..." Would you please
read that for the Court?
A. I'm not sure where you're directing fre,
sir.
Q. Let me approach again and show you here.
I'm sorry, I didn't have this highlighted for you.
Right here, vary last sentence of that
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first paragraph starts with, The motes..."
A.
Q.
A.
Page 161
Yes.
Mill you please read that for the Court?
Sure. "The notes, records and
transcriptions are confidential and exeunt from the
provisions of Section 119.07 subdivision ill and
Section 24(a), Article 1 of the State COnstitution, and
shall be released by the clerk only upon request by a
grand jury for use by the grand jury or on order of the
Court pursuant to 905.27.°
Q. Thank you, Mt. mho. And do you
recall my client asserting defense to your
claim as well?
A. Yes,
Q. And
firm and you yourse
that Mr. Aronberg a$ his office have no ability to
comply with your declaratory relief claim because they
have, on, custody or control of those requested
teriale?
I'm aware that's your argrent.
Q. You're aware that we've made that argument
several times, are you?
A. Yes, you made a notion to dismiss and a
metier for summary judgment.
that your client and your
made aware several tires
Page 16
Q. And did we also put that argument in our
57.105 decand?
Q. Okay. And isn't it true that you and your
client have admitted that the clerk is the only one in
possession and control of those requested grand jury
materials?
Q. All right. If I could direct the Court and
you, It. Mendelsohn, to tab 20, and it's IIIII stamped
262.
A. 262? Yes, sir.
Q. And then the second paragraph starts with,
"Also..." Can you just read -- Can you just read that
first sentence for me? Or I'll just read it here. It
says, Also, the clerk, whoadmittedlyMabothpossession
and control of the Epstein grand jury materials, has not
followed the state attorney's lead in seeking sanction of
the Palm Beach Post.
It says that in there, correct?
A. Well, you didn't read it verbatim, but
essentially that's what it says, yes.
It also says the clerk's decision --
Q. I didn't ask you what else it says.
A. I know, becauseitdoesn'thelpyou.
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Page 163 Page 165
1 Q. But I didn't ask you that. 1 Q. Okay. would you please flip to our joint
2 THE CURT: Gentleman, so this is the 2 Eabibit Amber 14?
3 second time, okay? 3 A. :.:-
4 MR. MR: Thank you, Your Baer. 4 Q. It's also found at IIIII stamp 232.
5 DEB COURT: Let's maintain a little 5
6 civility. 6 Q. Okay, do you -- do you recognize this as a
7 BY MR. WYLER: 7 copy of my client's 57.105 demand letter and a copy of
8 Q. Mr. Mendelsohn, in your extensive 8 the email when it was sent to you?
9 involvement in this case. how did you contribute to the 9 A. Yes, I do.
10 Jima 3rd, 2020, motion to dismiss hearing? 10 Q. And what dry was it sent to you?
11 A. How did I? 11 A. June 8th --
12 Q. Yeah, or did you? 12 Q. Okay.
13 A. I didn't argue the motion, but certainly, 13 A. -- of 2020
14 as part of the group, we had discussions as to how we 14 Q. Thank . then, if you flip to the --
15 thought it should be argued, the potential arguments from 1.5 peat the letter, 's IIII stamp 235.
16 the state attorney's office and what we thought would 16 A.
17 occur. 17 Q. you r. Do you recognize this as the
18 Q. Did you attend via Zoos or -- 18 notice for at I fees that was sent along with that
19 A. Yes -- 19 mod• or, with that 57.105 demand?
20 Q. Okay. 20 A. Well, it wasn't a action. It was an
21 A. -- : did. 21 option that you were suggesting would
22 Q. Andhavey*0n ever read the transcript of i if we did not act within the 21-day safe harbor
23 it? 57.105.
24 A Sete time ago, yes.
4
Q. That's right. And that -- Doyou/mowwhen
25 Q. Okay, so then you were aware of this motion for attorneys' fees was actually filed?
Page 166
1 Marx's statements, the ones that I read 1 A. July, the beginning of July of 2020, I
2 in my opening statement regarding the of 2 believe.
3 performance for the records that 3 Q. If I told you July 1, 2020, does that sound
4 A. I know she said t, yes. 4 correct to you?
5 Q. Okay. Did you Marx's 5 Yes, it does.
6 statements as to an Lgws lity of Mr. Arlberg being 6 Q. Okay. And is that core than 21 days after
7 able to ccaply? 7 June 8th, 2020?
8 A. I t her st is as complete dicta 8 A. Yes.
9 since they we fore her as a question co the 9 Q. It's 23 days beyond, my mach.
10 action to d not know what personal 10 A. I have no reason to doubt that.
11 knowl what the state attorney's possession 11 Q. If you look at -- I quoted in our -- In the
12 or . So I did not credit it as being 12 57.105 demmod, you'll see a quote of the Chapter 57.105
13 a dicta statement from her. 13 subsection (1).
14 So you or your fin, no one objected to 14 A. What are you referring to now?
15 those statements then, correct? 15 Q. Do you see in my -- the 57.105 demand
16 A. There wasn't -- I'm not sure %tat you're 16 letter, still Exhibit 14?
17 referring to. 17
18 Q. Was there any objections made to any of 18
19 those statements made -- objection or appeals made as to 19
20 those statements sade on the record in that hearing? 20
21 A. I don't follow, because you don't make 21
22 objections to a judge's amieuts. 22
23 Q. Well, through an appeal, you would. Did 23 statute's quoted there in the middle of the page?
24 you file an appeal as to that motion to dismiss? 24 A. Yes.
A. No. It wasn't necessary. 25 Q. Can you tell me anywhere in there there's a
A.
Q.
A.
Q.
A.
Q.
lbe demand letter that's Exhibit 16?
No, no, no. Still on 14.
14.
IIIII stag) 233.
233? Yes.
Okay. Do you see where the 57.105
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Page 167
1 good faith element?
2 A. No, because you didn't quote the good faith
3 element of the statute.
4 Q. In subsection (1), is there a good faith
5 element?
6 A. I believe there is a good faith element
7 that wraps =Lind the entire proceeding of 57.105.
8 Q. Okay, but in subsection 1 itself, is there
9 a good faith element in that subsection?
10 A. No, but there's an additional good faith
11 provision in 57.105 that you didn't cite to in this
12 letter.
13 Q. Okay. Now, are you referring to 57.105
14 subsection 4? I can show you the statute.
15 A. Let rre just check here. I'm looking at my
16 letter of Jun 23rd. 57.105(3)(a), that's utat I was
17 referring to.
18 Q. Okay. All right. And, now, we talked
19 stout this before. Can you -- 57.105(3)(a), can you read
20 absentia (a) for the Court?
21 A. I don't have 57.105. I have my letter
22 which --
23 Q. I can hand it to you.
24 A. Sure.
25 Q. Yeah, absolutely.
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A. Thank you.
Q. You're welcome. 3(a)
A. 'Notwithstanding
mmetary sanctions nay not be
paragraph (1)(b) if the Coat de
or defense was initially ted to the Court as a good
faith argurrent for the codification or
reversal of exist establishment of new law
as it is appli it applied to the material facts
for the Cation of success; (b), under
section' -- 'under paragraph (1)(a) or
against a losing party's attorney, if he
o in good faith based am the
rep tions of his or her client as to the existence
of material facts; (c), under' --
Q. I just -- I just needed you to reed (a).
Thank you.
A. II, I wasn't sure.
Q. So under (3)(a), does that apply to
subsection (1)(a) of the statute, or does it only say
(1)(b) there?
A. No, if you look at (3)(a) -- if you look at
(3)(b), it says, under paragraph (1)(a) or
paragraph (1)(b) against a losing party's attorney if he
or she has acted in good faith.
and (2),
under
that the claim
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A.
Page 169
You're seeking fees against oryself and --
No, no.
-- and Greenberg attorneys, so I read that
as being applicable.
Q. Mr. Nmadelsohn, you're skipping down to --
That's not what I asked you. 57.105(3)(a), does that
apply to 57.105(1)(a)? Does it say it in the statute?
MS. AFETSPONE: Objection, calls for a
legal conclusion.
MR. NYLER: No. I'm just asking him to read
it.
A. It doesn't say under 131(a), but I
don't remember the case r or not, when
you're suing both the the lawyer under 57.105,
that both of then • argument of geed faith.
BY YR. WYIER:‘ 1/4
Q. t 0Orrect me if I'm wrong, it did say,
under paragraph (la), if the Court determines that the
claim or &dense was initially presented to the Court as
argument?
(1) Ibl has good faith in it as well, yes.
. It doesn't say (1)(a) in there, does it?
A. I'm confused now as to %tat you're asking
No offense.
Q. Mr. Mendelsolm, that's okay. I'll more on
Page 170
from that. I believe the Court understands what I'm
saying.
So back to that 57.105 demand letter.
Isn't it true in that demand letter that we asserted that
your client's declaratory relief claim is not supported
by the material facts to establish it?
A. That's %tat you say, yes.
Q. Okay, we made that assertion, yes?
A. That's what the state attorney asserted.
Q. Yes, sir, okay. And, in making that
assertion, didn't he say that neither him or his office
has custody or control of those records and that's it's
impossible for him to provide then? He made that known
to you in that letter?
A. That's what he said, yes.
Q. Okay. Didn't that letter also say that
your client's declaratory relief claim is unsupported by
the application of the law to those facts?
A. Well, in a conclusory way, yes, but not in
any specifics as to thy we were wrong.
Q. Well, then maybe you should keep looking at
that because, if you flip to the second page of that
57.105 daand letter, do you see Section 905.27(2) quoted
as the reason for that assertion?
A. Yes, but if you recall, there was more --
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Judge Luis Delgado
September 08, 2022
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Page 171
Q. Thank you.
A. -- there was more than one argument you
were making and rore than ore arament we were making.
Q. A review of this letter makes crystal clear
-- sorry. All right. Okay, let's go to tab comber
16.
A. Yes.
Q. Do you recognize this as the letter where
you rejected our 57.105 demand?
A. Yes.
Q. Can I direct you to the very last paragraph
of that letter?
A. For these reasons, he decline' --
Q. No, sir. NO, sir. I'll point you. The
very last paragraph of this letter, it starts with, °Also
A. That's actually --
Q. II, no, I'm sorry, as the second page. I
didn't need that one.
That's actually the penultirate --
Then we'll start with the penultimate
A.
Q.
paragraph on 245 --
A. Right, I see that, yes. It starts, Also
Q. First sentence, plume.
2
A. Also assuming the state a
have physical possession of the grand
there is nothing in Florida law
attorney fran requesting the cle
state attorney.'
Do you wan
Q. No, sir.
to keep reading?
Hut I would like to
s,
the state
es to the
redirect your at on, ag9n back to 905.17 and that
statement that earlier. It says, ill* notes,
records ri are confidential and exept
from the of Section 119.07(1) and
Section le 1 of the State Constitution and
by the clerk only on request by a grand
jury fb5use by the grand jury or on order of the Ccurt
pursuant to Section 905.27."
A. Right, I'm familiar with that.
Q. Okay.
A. And that section refers to the clerk, not
to the state attorney.
Q. Thank you. Exactly. !bank you.
A. So there's nothing to prohibit the state
attorney in this statute fran asking the clerk for these
materials.
Q. All right, isn't there a big difference
between getting access from the clerk for materials and
Page 173
1 disclosing the materials? Isn't there a difference
2 between that?
3 A. I don't understand what you're asking.
4 O. I'll ask you again. Isn't there a
5 difference between accessing the materials and being able
6 to disclose the materials?
7 A. Once the clerk provides --
8 Q. No, no, no. It's a yes or no question.
9 A. Ibiza I don't understand what you're asking
10 me, to be honest with you.
11 O. Is there -- Is a difference between
12 saying, Bey, may I please records, versus
13 saying, Here you go, , Newspaper?
14 A. Well, -- what you'reaskingme
15 is a twofold quest
16 Q.
17 difference
18
19 di
20 s
21
question. Is there a
and disclosure?
you access something, it's
don't understand what you're asking me,
ly don't.
Mr. Mendelsohn, I'm sorry, and I do not
have -- I do not want to asks the Court angry,
ve got to stop talking over each other. I'm
you a simple question.
You stated here that Mr. Arenberg could get
Page 174
1 access to these records through the Oaurt -- through the
2 clerk, correct?
3 A. He could ask the clerk for them, and I
4 didn't -- and I argued that there was nothing in the
5 statute prohibiting him from asking the clerk for the
6 clerk to give his office these docarents, yes, sir.
7 Q. Okay, sure. Okay, thank you. And so let's
8 just say that happened.
9 A. Okay.
10 Q. The clerk gives -- It. Arenberg asks the
11 clerk for the records and the clerk gives them to him.
12 A. Okay.
13 Q. That's not what you asked for in your
14 lawsuit, is it?
15 A. Yes, of course it is.
16 Q. It. Mendelsohn, did you not -- does not
17 your complaint request the complete -- the disclosure of
18 these records fres my client?
19 A. But --
20 Q. You asked -- Did you ask in your lawsuit
21 for my client to hand these records over?
22 A. No, no.
23 Q. No? Okay.
24 A. No, because be had asked for the records to
25 be examined by the °curt in camera before they were ever
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September 08, 2022
Page 175
1 to be disclosed to the public. In fact, we stated in the
2 myriad complaint that the Court should review such
3 documents and redact anything that would identify
4 witnesses or potential witnesses or those who were not
5 charged with a crime.
6 So it's inaccurate for you to suggest that
7 the paper just wanted it handed to them. That was never
8 the case.
9 Q. Okay. Let's look back at your complaint.
10 It's tab number 9. We're going to look at IIIII stamp
11 136, and we're going to look at your wherefore clause.
12 A. Tab 9, you say?
13 Q. Yes.
14 A. 136?
15 Q. Yes.
16 A. I see it.
17 Q. Okay.
18 A. *Wherefore, the Post -- the Palm Beach Post
19 respectfully requests that the Court determine the rights
20 and obligations of the parties by declaring that,
21 pursuant to Florida Statute Section 905.27(1)(c) and the
22 Ccurt's inherent authority, the Palm Beach Post may gain
23 access to the testimony, minutes and other evidence
24 presented in 2006 to the Palm Beach aunty grand jury
25 use those materials for the purpose of informing
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public.*
Q. Okay, thank you. And
that you're asking for the Palm
to the testimony; is that correc
A. Yes, after the
camera.
Q. How else
unless it was disclosed to
A.
I'm
Q.
A.
Q.
A.
2020.
not.
L(.7
following idiat you're asking me,
to testimony
Would you please look at tab J17.
Dave Aronberg's motion for attorneys' fees?
Uh-huh.
Okay.
It's at MI stamp 247.
Right. This is the one you made on July 1,
Q. Correct. And we went through that.
Before, you said that was filed at least 21 days after
you received the 57.105 demand, correct?
A. Well, you said it was 23, and I ay.ved with
you.
Q. And I said at least 21 days.
Page 177
1 A. Right.
2 Q. Thank you. So, if I give you this -- Let
3 me give you this 57.105 statute again and ask you to look
4 at subsection (4) for me.
5 A. Okay.
6 Q. And if could you reed that to the Court.
7 Thank you.
8 A. "A motion by a party seeking sanctions
9 under this section must be served bit may not be filed
10 with or presented to the Court unl ss, within 21 days
11 after service of the motion, the lenged paper, claim,
12 defense, contention, allegat al is not
13 withdrinm or appropriate
14 Q. Thank you and your client did not
1.5 withdraw the claim relief within that
16 21 days after correct?
17 A.
. And then let me have you look
19 at -- or, our Exhibit Mater 23.
20 Plaintiff -- Yes, the notice of dropping
21 Dave Arenberg cc October 21st, 2020, that
you want me to look at?
Q. Yes, that's right. Yep. And that's the
te it was filed, October 21, 2020; is that what you
said?
Page 178
1
2
3
A.
Q. Okay. And is that filing date more than
21 days beyond when you were served with the 57.105?
5
A.
Q.
You're confusing a lot of things there.
Pb, I'm not. I asked you a question.
6 A. I cannot answer that question, I can't --
7 Q. Okay.
8 A. -- because it's making a number of
9 assumptions that are inaccurate.
10 Q. No, no, no. That was one simple question.
11 When you served with the 57.105 demand? were
12 A. Which one?
13 Q. No, no, no. You were only served with one
14 57.105 demand.
15 A. That's correct.
16 Q. Okay. I'm just asking which one.
17 A. Right. I wanted you to pin down what you
18 did.
19 O. Okay, you %ere served with one 57.105
20 demand.
21
22 Q. What day was that?
23 A ?he. _ester has June 8th, 2020.
24 Q. Okay. And this -- And that gave you
25 21 days from that date to change your position; is that
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September 08, 2022
Page 179
1 correct?
A. The statute gave me that, yes.
3 Q. Okay. And then when did you actually
4 change your position and drop Mr. Aronbeng?
5 A. We dropped Yr. Aronberg -- khan you say
6 changed position, I don't ;cow what you're referring to.
7 Ye dropped Mx. Aronberg as a defendant in this case an
8 October 21, 2020.
9 Q. Okay, and October 21, 2020, is more than
10 21 days after June 8th, 2020, right?
11 A. Yes.
12 Q. Okay. So then that fits with the statutory
13 language then, correct, of what that 21-day -- it gives
14 you 21 days to withdraw, and you didn't withdraw within
15 21 days, correct? The statute, 57.105 subsection (4),
16 gives you 21 days to withdraw the alleged --
17 A. You are confusing a number of thirgs that
18 are happening, so I cannot answer that question. You're
19 assming certain things that are not accurate, so I
20 cannot answer your question in the manner you put it to
21
22 Q. Mr. Mendelsohn, it's very simple. I'm just
AC ir
23 trying to establish that that -- that you filed your drop
24 cure -- you dropped the claim against Mr. Aronberg
A\
25 outside of the 21-day safe-harbor period, correct?
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A. But you never moved --
notion on the first motion you made fg(fegs.
Q. Okay.
A. That's not before So re confusing
a safe-harbor for something you' roved on versus
fendant after something else dropping }our client as
happened.
Q.
A.
Q.
're nixing two things together.
I believe you are. deny, so is
it your that, attar you dropped Dave
sot, that --
He's not a client.
After -- /s it your position that, after
you dropped Dave Arcrberg as a party free this lawsuit,
it's your position that, after you dropped him, that
another 57.105 demand letter should have been sent to
you?
A.
Q.
You didn't give us --
Just answer my question. After you dropped
Aronberg from this lawsuit, is it your position that
you should have been served with another 57.105 demand
letter?
A. Yes. You didn't =ply with 57.105 for
your amended motion for 57.105. You did not comply with
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Page lei
it. Yes, that is the position.
Q. Can you tell me, after dropping
Mr. Aronberg from the lawsuit, bow your position -- how
your client's position could have changed if they were
served with another letter being that he was already out
of the lawsuit?
A. Well, that's the problem you have because
you served this motion without giving us the safe-harbor,
the amended motion I'm referring to, as well as the fact
that you served it after we him. For
jurisdictional purposes, you can do that.
O. SW could I a safe-harbor if
you had alreadydropped the t?
A. Mr. Myl all due respect, you're
actually raking my .ich is that 57.105 is not
applicable hi'
case.
Q.
is no longer part of the
I guess we just have differing
19 vf to interpret that statute, Mr. Mendelsohn.
20 • All right, I just have a few more questions
21
\ack
Sure.
W Q. I'd like go -- I think I'd like to go
to that final judgment. That was tab 30.
A. Okay.
Page 182
Q. All right, all right, I'mm=4th*
1473, and I'm at the top of that page, that first
sentence.
A. The clerk's position? Is that what you're
reading from?
Q. Yes, yes. That's correct.
A. "The clerk's position is that he is merely
a custodian of the materials, and, as such, he has no
real interest in the issues before the Court as
identified. The cleric only needs direction from the
Court on whether or not he should produce or disclose the
materials. Nonetheless, the clerk has zealously
advocated the position against disclosure based upon
grand jury secrecy and confidentiality because
Rule 2.420(d)(1)(8)(xvii) of the Florida Rules of General
Practice and Judicial Administration, the clerk is
required to maintain the confidentiality of grand jury
records."
Q. Yes, will you read the next paragraph, too,
please?
A. The clerk is correct that his role as
custodian of the materials is only to follow the Court's
direction once confidentiality is determined. The
clerk's role in this proceeding has been complicated or
expanded because the newspaper filed this action as a
www.phippsreporting.com
([Phone Redacted]
EFTA02735027
Judge Luis Delgado
September 08, 2022
Page 183
1 civil declaratory judgment action and has moved for
2 gunnery judgment under Florida Rule of Civil Procedure
3 1.510. However, the proper procedure for obtaining
4 disclosure of confidential Court records is set forth in
5 Florida Rule of General Practice and Judicial
6 Administration 2.420(j) which only requires the filing of
7 a, quote, motion, end quote, seeking disclosure, Florida
8 Rule of General Practice and Judicial Administration
9 2.420(j)(2)."
10 Want re to keep going?
11 Q. Yeah, just to the very end of that next
12 sentence, please.
13 A. "Accordingly, the Court will treat the
14 newspaper's complaint and motion for smeary judgment as
15 a notion for disclosure under Rule 2.42' -- excuse me --
16 "2.420(j). As a result, the Court need not deterx:re as
17 a matter of law whether the clerk of the Court is a
18 proper defendant to the declaratory judgment for the
19 release of the grand jury materials."
20 Q. Thank you. All right.
21 A. I'm sorry. was there a qastion?
22 Q. No. There's going to be. Just one second.
23 When you filed this lawsuit, were you
24 familiar with Rule 2.420 of the Rules of Judicial
25 Administration?
A. Absolutely.
2 Q. Then why didn't you jus it a ton like
3 the rule says -- says you're want
4 confidentialCourtrecordsand t instead?
5 A. First off, the rul actually say
6 that. It says you may f a motion in a pending
7 criminal or civil p there wasn't a
8 pending criminal evil p , we didn't view that
9 motion as be ry to be rade.
10 issue is before the Faith Da at
11 the pr and the clerk's taken the position in
12 its hat Rule 4 -- 2.420 is ambiguous and
13 t that needs to be positi on is
14 mm And, in fact, the clerk's position is now
15 that the Supreme Court must reassess how one would seek
16 grand jury materials.
17 That was in their answer brief, which I'd
18 be happy to provide to the Court along with our initial
19 brief and reply brief, which extensively discusses
20 Rule 2.420, but also argue that the clerk has now adopted
21 a position of neutrality when it cones to the release of
22 the grand jury materials. In its answer brief, it says
23 it no longer opposes release of the materials.
24 Q. Okay.
25 A. It is now neutral on that issue.
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Page 185
Q. Thank you, /tr. Mendelsohn.
In the Court's final judgment, however, it
does say, which you just read to the Court, the proper
procedure for obtaining disclosure of ccofidential
records is set forth in Florida Rule of General Practice
and Judicial Adednietratico 2.420(j), which only requires
the filing of a notion seeking disclosure; is that
correct?
A. Yes, but at this tire, the state attorney
was not a party, and, in fact, the state attorney has
never made any amprect under Ru 2.420 in this case.
It has never made such an a
Q. But you f t rule before you
filed this lawsuit?
A. Righ erk rade this argrent
after we attorney from this case. That
was the firs' clerk had rade such. The clerk
rade this a the rule was applicable in
our motion for au:Teary judgant which
r the state attorney had been dropped from
So this was not an issue in the case either
use your client did not raise it, the clerk did not
ise it, and it was not before the Court until after
your client was no longer a party. So it was net an
Page 186
1 issue that either you addressed or we addressed as part
2 of your demand that we withdraw the case.
3 Q. But you still knew about it before you
4 filed the lawsuit, right? You haw about that rule?
A. Of course. Of course.
6 Q. All right, last question for you: Isn't it
7 true that your client's goal in obtaining these records
8 from my client was for public disclosure? Was that your
9 end goal?
10 A. After the Court examined them in camera and
11 removed witness identification or people who hadn't been
12 indicted, that was actually discussed very musk:
13 extensively in the oral argirrent before Judge Hafele,
14 and, in fact, he asked us particularly if I were -- and
15 using Judge Hafele's words -- inclined to release these
16 materials to the newspaper and the public -- it wasn't
17 just the paper; it was simultaneously to the pcblic --
18 how would I go about redacting them? Would I need to
19 have someone else, a , possibly review them? How
20 would I go about doing it?
21 And we had about a half hour's worth of
22 discussion as to how to accomplish that if he were
23 inclined to grant disclosure. So that absolutely was an
24 issue before Judge Hafele.
2S Q. Great. So then the final goal was -- Was
www.phippereporting.com
([Phone Redacted]
EFTA02735028
Judge Luis Delgado
September 08, 2022
Page 187
1 the final goal to have these requested grand jury
2 materials be able to be disclosed to the public?
3 A. Absolutely.
4 O. Okay. And that was without any connection
5 to any underlying civil or criminal case, correct?
6 A. If you're asking me whether or not the Post
7 was part of a civil or criminal case pending at the time,
8 no, it was rot.
9 Q. You did not -- Did you request these
10 records as part of a pending civil or criminal case?
A. Involving the Post? No --
MR. MILER: Thank you. No further
questions.
A. -- ocher than this lawsuit.
7HE COURT: Thank you.
Redirect examination.
REDIRECT EDDIMIlaTICN
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Q. Good afternoon, Kr. 14mndelsohn.
A. Yes.
Q. Mr. Wyler asked you to read a sentence in
the amended complaint --
A. Yes.
O. -- and I'd like to dram your attention
that, and it's kchibit 9. I'm going to look at
1 paragraph 3.
2 A. Yes, I have that in f
3 Q. Can you read the en
4 please?
5 A. Yes, I'd be happy
6 'Defendant ve Arenberg is the duly
7 elected State Attorney h Judicial District in
8 and for Palm y, rida, pursuant to Florida
9 Statute Secti and has authority in grand jury
10 proceedi g t Florida Statute Section 27.03.
11 He is •fficial capacity as his office is in
12 posseae control of dacurents that are the
is action.'
So, and I'm actually going to compare --
15 MS. NEE15-DDNE: And it's on the screen for
16 Your Honor, too, if that's easier to see.
17 BY MS. WHEDM-PDNE:
18 Q. But we're going to look at paragraph 4 next
19 because paragraph 4 names the clerk; is that correct?
20
21 Q. Could you read paragraph 4, please?
22 A. Yes. "Defendant Sharon R. Bock is the duly
23 elected clerk and comptroller of Palm Beach County,
24 Florida. She is sued here in her official capacity as
25 her office is in phnnennion and/or control of docurents
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Page 189
that are the subject of this action.'
Q. So comparing those two paragraphs, was the
clerk named in a different capacity as the state attorney
in paragraph 3?
A. Yes, because, in paragraph 3, I cited to
Florida Statute 27.03, which is the broad grant of
authority to state attorneys to supervise and conduct
grand jury investigations, and that's really what the
situation involved in this case.
Q. So you set asrth amended complaint
that the state attorney was having authority
over grand jury proceedings; 1 correct?
A. Yes.
Q. Was the in the first
complaint that was 2019?
A.
Q. ahead and pull that up.
EE: And, Gerard, if you don't
t's Fachibit 4.
And, while you're turning to that, was the
y named in its official capacity as having
on?
A. Yes, that is correct. I'm looking at
paragraph 3 of the original complaint dated 11/14/2019,
Page 190
1 and it appears that paragraph 3 appears the sane.
2 Q. And let's go ahead and blow that up just so
3 we can close the loop CO this.
4 Paragraph 3 of the original complaint is
5 the same as the amended complaint; is that correct?
6 A. Yes. Both of them cite to Section 27.03
7 Florida Statutes creating jurisdiction by the state
8 attorney over all grand juries within their particular
9 judicial district.
10 Q. So the state attorney was named -- never
11 named solely because he might have possession, custody --
12 or custody of the grand jury records from the Epstein
13 grand jury laViNitigatiOn; is that correct?
14 A. That is correct. The primary reason was
15 because the state attorney has such authority over the
16 grand jury process in this judicial district.
17 Now, granted, Mr. Arenberg was not the ore
18 who canducted the Jeffrey Epstein grand jury proceeding.
19 Nevertheless, wp didn't sue Mr. Arenberg in his
20 individual capacity, only in his official capacity
21 because he's the successor to State Attorney Krischer.
22 Q. Was there any case law cited in the amended
23 complaint -- We'll go back to Exhibit 9, please -- any
24 case law cited in the amended complaint dealing with the
25 state attorney's official capacity as the protector of
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([Phone Redacted]
EFTA02735029
Judge Luis Delgado
September 08, 2022
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Page 191
the grand jury system? 1
A. You mean paragraph 3? 2
Q. Yes. 3
A. No, I didn't cite to it because it was 4
clear to anyone who looked at Florida Statute 27.03, they 5
would see a litany of cases describing the authority of
the state attorney over the grand juries in their
judicial district. So it was obvious that -- what he
6
8
were getting at. 9
Q. You cited the statute that gives the state 10
attorney power over the grand jury? 11
12 A. Corneas, yes. In fact, there are cases
that say that, under this statute, that the grand jury is 13
essentially the arm of the -- of the state attorney. 14
Q. And now that we're back on the amended 15
complaint, I'll direct your attention to paragraph 21 -- 16
sorry -- page 21, wherein there is the wherefore clause. 17
Mr. Wyler had you read from one of the 18
wherefore clauses, but I wanted to ask about the 19
wherefore clause on page 21 -- 20
22 Q. -- and you had said that you had requested
23 an in-camera inspection. Actually, could I just ask you
24 to read this wherefore clause?
25 A. Sure. "The 2alm Beach Post reufec.
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requests that this Court, pursuant to Flo
Section 905.27(1) and the Court's in
order the state attorney and cle
with this Court files of testi
evidence presented in 2006 to
jury during the first Je
investigation so that, fo
it can be nark avateble to
e
ty,
to file
and other
ch County grand
Epstein sex abuse
in-camera inspection,
Palm Beach Post and the
2
public on an basis, and grant such other and
further ' or 1 relief the Court deems just
and pr
Jo( in the amended complaint, did you
-care inspection?
In fact, in our motion for sumer,/ judgment
that we made before Judge Hafele, there's a %bole section
on that.
Q. And Pt. Wyler asked you about the
transcript -- the hearing before Judge Marx and that
transcript, and during that hearing, Amiga Marx made
comments about possession and custody of the grand jury
records by the state attorney.
I wanted to ask you about the order on that
motion to dismiss. The order was Exhibit 15.
Q. And did Judge Marx's order address those
21
Page 193
almeists that Kr. Wyler read?
A. No, she did not. That's why I believe that
they were dicta.
Q. And what did Judge Marx's order rule?
A. She ruled on a very narrow area, which --
and I respect Judge Marx. She's a very, very seasoned
and reasoned jurist.
She determined that, under 905.27, that
there was not a private cause of action, and that,
because it was not a private cause, of action, we could
not utilize that statute to seek
materials. We disagreed wit
subject of the appeal.
Q. So
entered by Judge
A.
Q.
grand jury
and that is the
final judgment that was
is --
t 30, yes --
-- It. Wyler asked you to read Iran page 7,
number ending 1477.
Yes.
Q. And I'm going to ask you to go ahead and
that paragraph, or read the whole paragraph if you
like.
A. Right. "The newspaper makes strong
Page 194
1 arguments to advance its more expansive construction of
2 Section 905.27 as part of, quote, furthering justice,
3 unquote. Unquestionably, the established matters
4 sinnxinding Mr. Epstein's conduct, the circumstances of
5 his resolution of the 2006 state charges and potential
6 federal charges and his guilty plea and
7 incarceration are matters of public interest, and
8 disclosure of the materials may arguably fall within the
9 concept of, quote, furthering justice, end quote, in the
10 broadest social sense of the phrase."
11 Should I keep going, or not?
12 Q. I think that's fine for now.
13 Were there other portions of the final
14 judgment that you wanted to discuss and needed to finish?
15 Did the --
16 A. Well --
17 Q. Go ahead, sorry.
18 A. I take issue with the state attorney's
19 assertion that this was only about possession and
20 custody. Me were asserting that the Cant has inherent
21 authority over the grand jury process and that inherent
22 authority superseded or was preeminent over the statute,
23 905.27. 'that is wiry we gave the state attorney the
24 opportunity to participate in this case, because we felt
25 it was only fair to, not only the state attorney, but to
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([Phone Redacted]
EFTA02735030
Judge Luis Delgado
September 08, 2022
Page 195
1 the public to hear a voice for secrecy. And
2 the state attorney availed himself of that opportunity.
3 Now, on appeal, we are of the belief that
4 the Court has such inherent authority and that the
5 Court's inherent authority is, as I say, superior to the
6 statute. There are federal cases %rich say that, and
7 there are state cases which say that. And, in fact, the
B Florida Supreme Court's case -- actually it's a Fifth DCA
9 case in Clayton says that, where a state attorney may
10 have abused his authority with the grand jury -- It's not
11 Mr. Krischer, and it's not Kr. Arenberg, so I'm not
12 suggesting they are -- but, in that case, it was the
13 Fifth DCA who said that, I don't care what the statute
14 says, the Court has authority to control ahme% of the
15 grand jury process, and ultimately that's why we're here.
16 We believe that we've laid out a very
17 detailed factual and legal reason why we think the prior
18 state attorney abused his authority. How did he do so?
19 By obtaining materials from the defense team that
20 undermined the credibility of the witness and the victim
21 before the grand jury. We assert that in paragraph 22 of
22 the amended complaint. It states that in there. And, if
23 you look at the exhibits, you'll see that.
24 We now know, based upon the Department o
25 Justice, tte U.S. Department of Justice's report.
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the clerk's office in Palm Beach County
reported secret grand jury materials al
goverment without a court order,
apparently to Mr. Aronberg's off or t We public.
Now, why they did r what
authority they did that, 't know. Now, whether they
asked Mr. )(Tischer or wile tad during the
time of the U.S. rney's [erections with the state
attorney, Mr. s office, we don't know that
either.
that they have been disclosed.
Q a; 're trying to get those materials
We want the public to have those materials.
Right.
Ntt me.
Q. The public.
A. The public. The Post is only a conduit fo.
the public. That's what the media is under the First
?merriment. Without the media acting as the conduit for
the public, the public does not have the authority, the
time or the resources to inform the public of what's
going to happen.
Imagine if Joe Public or Jane Public came
and brought this lawsuit. WOuld it have gone anywhere?
No. Thank God for the First Amendmmtt that the Post has
1
2
3 important.
4 THE CCCRT: You are. So let's move on.
5 THE WITNESS: Thank you.
6 BY MS. WHETS1tt'E
7 Q. Thank you, Mr. Mendelsohn. Now let's go
8 back to the demand, the first motion for sanctions that
9 was that one-page motion, and that was served on
10 June 8th, 2020.
11 A. Yes.
12 Q. And the demand tidbit 14.
13 Yes.
14 Q. And Mt. asked you smae questions
15 about the letter that was with that motion and
16 wasthe basis for cos motion that was attached
17 dealing with possess or custody of the grand jury
18 materials by attorney's office.
19 I'm sorry, I don't understand your
20
21,t_ Sure. He had asked you whether there was a
the first motion for fees, and the basis is set
in this enclosure letter; is that correct?
A. Right. Their position was that the
Statute, 905.27, and -- yes, 905.27 did not provide a
Page 197
the right constitutionally to seek these materials.
I know I'm going off on a tangent, but it's
Page 198
1 private right of action, yes.
2 Q. So 905.27, that statute is not the claim
3 that we're here on today, correct?
4 A. That is correct. Count I was broader than
5 that.
6 Q. And, when it cares to -- Mr. Wyler said
7 something about possession or custody of the state
8 attorney. He referenced that the state attorney does not
9 have possession or custody in this letter, correct?
1: A. Correct.
11 Q. But the reason for naming the state
12 attorney in the complaint, the initial complaint and the
13 amended complaint, was broader than his own possession or
14 custody?
15 A. Correct. As the entity charged by Florida
16 law with the supervision of the grand jury proceeding,
17 that included as well the protection of grand jury
18 secrecy, and we need him in his official capacity, if he
19 so chose, to protect grand jury secrecy, which he did in
20 a notion to dismiss and the =kin for sugary judgment
21 he filed opposing the release of the materials to the
22 public.
23 Q. So that first motion for fees was filed
24 July 1st, 2020; is that correct?
25 A. The first motion, yes.
www.phippereporting.con
([Phone Redacted]
EFTA02735031
Judge Luis Delgado
September 08, 2022
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8 sanctions which was filed November 9th, 2020; is that
9 correct?
10 A. Co . And, in fact, the amended motion
11 and the notice of hearing does not mention the first cc*
12 iron July of 2020.
13 Q. So you never got a notice of hearing that
14 set the original first -- July 1st, 2020, notice for fees
15 for hearing; is that correct?
16 A. That is correct, yes.
17 Q. And you never got a copy via mail or fax or
18 hard copy of the amended motion for fees filed
19 November 9th prior to the time it was filed, correct?
20 A. That is correct. We weren't given the
21 21-day safe harbor.
22 Q. Why did you -- Why did the Poet decide to
23 drop the state attorney +den it did?
24 A. The state attorney's position changed f
25 OCR of opposition to the release of the grand jury
1 materials to one of neutrality. Once the
2 Woe the state attorney changed the the
3 Post re-evaluated Mather or not in in the
4 case, and xe determined that he d 1>e from
5 the case.
6 Q. At that point, had the Post accomplished
7 everything that it needed from the state attorney in the
8 amended complaint
9 A. s. had given him the opportunity to
10 voice obj r jection. He originally voiced
11 object changed it to neutrality. That was
12 his deer there was nothing further that needed
13 t
14 And, at that point, when the Post decided
15 to dismiss the state attorney on October 21st, 2020, had
16 the Post accomplished everything that was set forth in
17 your June 23rd, 2020, letter, those three reasons?
19 A. Yes. Vb had given the state attorney his
19 opportunity to be heard, and he took it and then decided
20 he no lancer needed it.
21 Q. And, finally, the -- you mentioned that the
22 final judgment on Count 1 regarding declaratory relief is
23 currently on appeal.
Cost I is, yes.
25 Q. And does the state attorney need to be
Page 199
Q. Yes. And did the state attorney ever set
that motion, original motion for fees for hearing?
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A. sever. 3
Q. And we are not here on that first motion; 4
is that correct? 5
A. Correct. They never set it for a hearing. 6
Q. So we're here on the amended motion for 7
a
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need in that appeal?
A. No.
Q. Why not?
A. Well, the appeal was taken on Octet 1 as
you say. ()stint 1 had a nu7ber of elements associated
with it. That's the declaratory judgment provision. It
asserted that, under the First Amendment, both the U.S.
Constitution and the Florida Constitution that the Post
had standing or the right to seek these grand jury
materials, and the statute was lernentary to that
First Amendeent right by the 1a. ge in the statute,
905.27, of it being in furt
We also as
inherent authority
appellate court we
conflict with
authority
So there were
el
justice.
that The Court had
905.27. If the
that 905.27 was in
thority, that the Court's
to 905.27. So if it's unclear --
r of elements, a constituticnal
Court's ccnstituticnal inherent authority as
the Florida Supreme Court and that we
the reading of the statute that read out in
of justice or tied it exclusively to a
ng civil or criminal case •was too narrow a reading
the statute.
Q. So the state attorney has stated his
1 affirmative non-objection to the clerk releasing the
2 grand jury materials from the Jeffrey Epstein case if
3 ordered by the Court?
A. Yes. That :as xity we &Lipped the state
5 attorney.
6 O. co October 14th --
7 A. Correct, yes.
8 Q. -- that vas the first time he filed that
9 affirmative statement --
10 A. Yes.
11 Q. -- that be didn't object?
12 A. That's absolutely right, yes.
13 Q. And the clerk no longer objects to the
14 release of the grand jury materials if ordered by the
15 Court in the Furth DCA appeal?
16 A. Yes. In their answer brief, the clerk took
17 the position that it had no opposition at all to the
18 release of the materials, utich was contrary to the
19 position they took against our motion for stranary
20 judgment.
21 MS. WEINIXNE: No further questions.
22 THE CCCRT: Is this witness excused?
23 THE WITNESS: Thank you, sir.
24 MS. ATEMIME: Yes.
25 THE CURT: All right, thank you, sir.
www.phippereporting.com
([Phone Redacted]
EFTA02735032
Judge Luis Delgado
September 08, 2022
Page 203
1 MS. Nrobto.tra If I may approach, I'll
2 take the exhibit binder.
3 THE WITNESS: These are for Mr. Wyler.
4 Thank you.
5 THE CUJRT: Next •witness.
6 MR. WYLER: May we call a rebuttal witness?
7 MS. WE15-DINE: Your Honor, there's no
8 rebuttal witness listed on the --
9 MR. WYLER: Well, as to the statements that
10 Yr. Mendelsohn said at the beginning denying the
11 conversation where he, you know, put it on us to
12 -- you know, he said that he would hold the filing
13 of an article while settlement negudations were
14 pending.
15 MS. Vutia LW: And, Your Honor, those
16 settlement discussions were never entered into
17 evidence, never e•.en atterpted to enter into
18 evidence, and we object to those being entered
19 into evidence now.
20 WE COURT: Settlement negotiations are
21 excluded by statute. All right, so no.
22 MR. WYLER: Okay.
23 FLS. VutioLUNE: Thank you, Your Honor.
24 THE WJRT: Is there anything else?
25 W. WYLER: Other than -- No, Your Honor.
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THE 07JYT: Okay. Then, I guess,
parties have rested at this point?
MS. WALTSICNE: I was going
Hera: wanted copies of the appea the
reply that had been filed in the
CUJRT: It's n evidence, no.
MS. WNETSITXZE: -movant rests.
THE COURT: right So everybody's
rested. I ha joint --
have just a moment,
I'll take a mment. I'll be
minutes.
the record from 2:20 p.m. to 2:35
p.m.)
THE CUJRT: Please be seated.
Everyone get a chance to confer with VriD
they need to confer with?
MR. WYLER: Your Honor, thank you. We'd
ask if you might reconsider the rebuttal witness.
It's not based on settlement. It's really based
on the direct testimony yesterday of
Yr. Mendelsohn saying that there was a firewall
between the legal team and the news team, and our
witness can directly contradict that.
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MS. WETSTONE: Your Honor, we object to
this as not on the witness list, which we have
agreed, and having no issue that needs to be
raised. You could have asked Mr. Mendelsohn about
and you could have asked Mr. Arenberg about his
con recollection of that instance.
MR. WfLER: I could call Mr. Axcaerg then
as a rebuttal.
THE COURT: I'm sorry?
MS. FOWTSICUE: Objection, i 's not
relevant to the motion at all.
THE COURT: I agree.
reconsider.
MR. WYLER:
THE CURT:
now, I think
here has tha
arguments,
give
I will not
our Honor.
ts. All right,
ed last time we were
d give re your closing
needed to supplement, I'll
supplement in writing.
hat you all want to do, or do you
lode today?
. WYLER: I would prefer to provide you a
en closing aliment if pemsible.
ME COURT: Instead of --
MR. Mt R: Yeah, I absolutely would.
4 Page 206
1 think that there's a lot of -- there's a lot going
2 on here, and I think it might be beneficial to the
3 Court if you would -- if you would allow us. I
4 will give you -- I'd be happy to give you a
5 written closing argument. I think it could help
6 you in formulating your final judgment, whichever
7 hay you go.
8 MS. hICTSTONE: Your Honor, I prepared a
9 closing argument, bit -- and I can also write one.
10 I was planning on doing a supplemental one anyway.
11 THE COURT: Well, I'm asking you, you know.
12 MS. hMISTONE: I think it would probably
13 be more -- if you were going to do one or the
14 other, I think written closing argrents, we could
15 really lay out, you }mow --
16 THE OCCIRT: Yeah, I joked about it earlier,
17 I think people are better in writing. A lot of
18 people, when they try to go off the cuff or deal
19 with the changes they experienced during a trial,
20 they miss things. I do think people are better in
21 writing.
22 How itch tire do you need to prepare a
23 written argument?
24 MR. WLER: If you could give us a week,
25 that would be great.
www.phippsreporting.com
([Phone Redacted]
EFTA02735033
Judge Luis Delgado
September 08, 2022
Page 207
1 Tht COOK: Okay, I'm going to give you
2 some guidance because there's something I do %ant
3 to hear fawn you.
4 I do want you to address [ago. And,
5 Ys. Whetstone, when I read In re Grand Jury
6 Proceedings, in those cases the state attorney was
7 subpoenaed, they were not a party to the case, and
8 I want you to address that as well.
9 How arch tine do you need to prepare your
10 closings?
11 MR. WYLER: If you could give us a week,
12 Your Honor, that would be terrific.
13 THE CCURT: I'll give you a week.
14 Ms. Whetstone, is a week sufficient?
15 MS. WniabiLEE: Yes, Your Honor, a week is
16 sufficient.
17 THE COURT: I'll give you 10 days. I world
18 also like a copy of the transcript attached.
19 MR. WYLER: Then we might need a little
20 more tire to get it.
21 MS. h14,151Ck€: Your Manor, could we ask
22 for 20 days?
23 IHE COURT: I'll give you three weeks.
24 I'll give you three weeks. Give re your -- your
25 written closings and proposed orders.
1
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Give me one more minute. There nd
something else I want you guys to
In the event that I agree ri
Mr. Arenberg, the amamts have
hBLETSICtri: No
not been stipulated to.
that objects to t
THE
e .taMS. "P:
didn't
Honor, they have
ted a bench memo
jorit f the fees.
that. Travel time.
s Your Honor.
But the rates have been
not contesting the rate. They
to bring an expert to talk about the
rate. Our argument was on legally whether sane of
these -- sane of these fees were -- were
recoverable.
7HE COURT: You can be seated. Give me a
secrod.
okay.
THE COURT: I want you to address
Weatherby. One of the cases submitted, Weatherby.
MR. WYLER: Weatherby? Yes, sir.
And, Ms. Whetstone, I want you to address
In re Grand Jury on that issue regarding --
1
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2
STATE OF FLORIDA
4 COUNTY OF PALM BEACH
Page 209
because there is a difference, Mr. Arenberg in his
official capacity as a named party, and In re
Grand Jury, I think in that case, I think the
state attorney's was subpoenaed.
And I also want you -- well, both parties
to address the Horowitz case where it says that
the judge can extend the law because it's an
obligation of legislative authority.
All right, so you'll give me your arguments
and proposed orders within 21 days.
Do I need to bring you back "n for a
hearing?
MS. hREISTOR4E: No
MR. MIER: No, r.
THE CCCRT: ght, then we'll be
in recess.
MS
you, Your Honor.
Thank you, Your Honor.
Have a great day.
ing concluded at 2:42 p.m.)
5
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Page 210
COURT CERTIFICATE
I, Lisa Begley, RPR, MCA, certify that :
was authorized to and did stenographically report
the foregoing proceedings and that the transcript
is a true and complete record of ny stenographic
notes.
Dated this 13th day of Septenber. 2022.
ofok13O1
Lisa Begley. RPR, RHR
www.phippsreporting.com
([Phone Redacted]
EFTA02735034
Exhibit "B" CP N
S Ci
I fe*
O(S
EFTA02735035
Timeline
Derai led toren arid analas ,s of Pan: ICCCrd of Epstein
estiqat.ors and legal rescarcn and analysis
supporting request to obtain grand pry records
Initial Compaq tiled (Fla
Stat. 4905.27)
"fauna/ . 1 7. 2020
Fist Amended Complaint fikd
'Count I Declaratory Rebel: Court
Fla. Stat §905,$)r
January 24,
Arenberg's An
!Anon to Dismi
June 8.2020 40
lieanng on
Motion to
s Count II
$ August 18. 2020
Aionberg's Motion for Summary Judgment and Affidavit
• First record evidence supporting argument that konbergSA has
no possession or control of documents, no authority to demand
that Clerk provide access to documents. and that his office has
never accessed grand pry materials from the Clerk's office in
tluS or any matter.
Importantly. does not address or admit that Arenberg or his
Office wood not block access or object to Clerk's production.
416 July 1. 2020
Arenberg files
First Motion for
Fees
..r e8 2020
r der Granting Motion to Dismiss Count II
qg October 14. 2020
Aronberg files Reply in support of First Motion for
October 2. 2020 $ Fees
Plaintiff fres • First time Aronberg states he has op
Response to First Objection to the production of Epstein grand
Motion for Fees fury materials by the Clerk
Descnbes his First Motion for Fees as a
'place marker
June 8 020 dIr
Seneceitplace-minopc First Motion for Fees and
enclosure letterEp1m Arenberg's attorney. 0 Wyler
Settlement DiSCLISSieel
June 8. 2020 October 15. 2020
iNovember 9. 2020
Arenberg Nes Amended
faobon for Fees (not
served any time prior to
(ding)
*October 21, 2020
Notice of Dropping Party
as to Arenberg
EDGreenberg-fraurig
EFTA02735036
Exhibit "C"
EFTA02735037
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 R.
BOCK, as Clerk and Comptroller of Palm
Beach County, Florida.
Defendants.
BENCH MEMORANDUM REGARDING
CO SA
'4( KREY FEE OBJECTIONS
Plaintiff, CA Florida Holdings, LLC (" e st"), publisher of The Palm Beach Post, by
and through undersigned counsel, and pu o tlTe Court's Order on Joint Motion to Continue
Evidentiary Hearing on the State Amended Motion for Attorneys' Fees dated August
morandum in connection with the evidentiary hearing
scheduled on September 6, 202 :30 p.m.:
DE NDY IS NOT ENTITLED TO ATTORNEY'S FEES
5, 2021, hereby submits this
For t
Memoran. aw ("Response in Opposition"), The Office of State Attorney is not entitled to
recover an amounts under Florida Statutes § 57.105.
MANY OF THE FEES REOUESTED ARE NOT COMPENSABLE
Should this Court determine the State Attorney is entitled to fees, which he is not, many
of the fees requested are not compensable and/or should be substantially discounted. Such
discussed in The Post's February 24, 2022 Amended Response and
EFTA02735038
CASE NO.: 50-2019-CA-014681
categories and case authority are below:'
• Travel Time in the amount of $10,412.50; see Exhibit A attached hereto.
hereto.
o Mandel v. Decorator's Mart, Inc., 965 So. 2d 311, 315-316 (Fla. 4th DCA 2007)
("[T]he award of fees should not have included the travel time of the attorneys ...
without proof that a competent local attorney could not be obtained, an award of
attorney's fees from an opponent should not include travel time over and above
what a local attorney would charge.").
o Palm Beach Polo Holdings, Inc. v. Stewart Title Guar. Co.,
(Fla. 4th DCA 2014) ("[T]ravel time is generally not compen
• Costs in the amount of $1,482.77; see Exhibit B attached
858, 862
o Ferdie v. Isaacson, 8 So. 3d 1246, 1251 (Fla. 4th 2009), superseded by
statute on other grounds. (reversing award s and stating that Fla. Stat.
§ 57.105 allows for "reasonable attorney's paid to the prevailing party,
but makes no mention of costs." (intern s omitted)).
o Ferere v. Shure, 65 So. 3d 1141, 1
is not allowed under section 57
th DCA 2011) ("[A]n award of costs
• Litigation Time Re: Fee Amount e amount of $3,485.00; see Exhibit C attached
o Cox v. Great Am. '88 So. 3d 1048, 1049 (Fla. 4th DCA 2012) ("The trial
court erred in tomey's fees incurred in litigating the amount of the fee
award.").
o Yakavoni
e
1phin Petroleum, Inc., 934 So. 2d 615, 620 (Fla. 4th DCA 2006)
fees are only available for time spent litigating the issue of
em, not for the time spent litigating the amount of fees to be awarded.").
Beach Polo Holdings; Inc., 132 So. 3d at 862 ("Although fees incurred in
e , gating entitlement to attorneys' fees under section 768.79 are authorized, fees
incurred in litigating the amount of fees are not recoverable.") (emphasis in
original).
o Oquendo v. Citizens Property Ins., 998 So. 2d 636, 638 (Fla. 3d DCA 2008) (fact
that retainer agreement obligated insureds to pay counsel for time expended in
The Post's objections against a multiplier are not included as the State Attorney no longer seeks
a multiplier. See April 13, 2022 Notice, [DE 99], at Tab X of Plaintiff's Joint Pleadings &
Filings Hearing Binder.
2
EFTA02735039
CASE NO.: 50-2019-CA-014681
litigating the amount of attorneys' fees made no difference to issue of whether
fees were compensable by other side).
• Administrative Entries in the total amount of $7,522.50, also containing block billed
time entries where portions of the entry are administrative; see Exhibit D attached hereto.
o N. Dade Church of God Inc. v. JM Statewide, Inc., 851 So. 2d 194, 196 (Fla. 3d
DCA 2003) ("We do, however, conclude that the attorney's fee award must be
reduced. . . . Likewise noncompensable is excessive time spcn on simple
ministerial tasks such as reviewing documents or filing notices ofgpp arance.').
v. Sophia, 711 So. 2d 209, 212 (Fla. 4th DCA 1998) mere fact that
the client is not standing over their shoulders as each time gged does not
allow them to inflate the time spent on their client's • or does it allow
duplicative services by multiple members of the firm
o Wells Fargo Bank, N.A. v. Mickelson, 2018 F ir.TEXIS 3017,'9 (Fla. Cir.
Ct. 2018) ("Courts are clear that purely sks should not be billed at
paralegal rates regardless of the qualific e biller. Where there was no
evidence that work done was parale I r as opposed to secretarial work,
courts have reversed an award of pgrtffe s." (collecting cases)).
• Media time entries in the amount $ . ; see Exhibit E attached hereto.
• Settlement time entries in t oun of $1,835.00; see Exhibit F attached hereto.
•
hereto.?
o MacAlister v. Be
(stating that c
serves its inte
chilling effect on
LLC v. 1000 Friends of Fla., Inc., 228 So. 3d 147 (Fla. 4th DCA
(same).
Inc., 164 So. 3d 773, 776 (Fla. 2d DCA 2015)
apply Section 57.105 "with restraint to ensure that it
rpose of discouraging baseless claims without casting a
of the courts.").
Back time entries in the amount of $27,540.00; see Exhibit G attached
Yakavonis, 934 So. 2d at 619-620 ("Ulf the claim or defense is not initially
frivolous, the court must then determine whether the claim or defense became
frivolous after the suit was filed . . . The trial court is free to measure the
attorney's fees from the time it was known or should have been known that the
claim had no basis in fact or law.").
This calculation is done from the date of The State Attorney's Response to Plaintiff's
Memorandum of Law in Opposition to the First Motion for Fees, October 14, 2020.
Alternatively, calculating from July 1, 2020, the date the first Motion for Fees was filed comes to
$ 16,447.50; see Exhibit H attached hereto.
3
EFTA02735040
CASE NO.: 50-2019-CA-014681
o Hustad v. Architectural Studio, Inc., 958 So. 2d 569, 570 (Fla. 4th DCA 2007)
("The mere dismissal of a suit does not necessarily justify an attorney's fee award
if the suit can be considered to have been non-frivolous at its inception.").
o Fla. Stat. § 57.105(1)(a) (stating that fees are to be awarded "on any claim . . . at
any time during a civil proceeding . . . in which the court finds that the losing
party . . . knew or should have known that a claim . . . [w]its not supported by the
material facts [or law] necessary to establish the claim.").
• Clerk-Only Entries in the amount of $2,277.50; see Exhibit I att ec to. This
covers fees claimed after the dismissal of the State Attorney and which rel Iely to matters
involving the litigation with the Clerk of the Court.
Respectfully su
La tone
No. 45192
ideau
a Bar No. 564044
cnberg Traurig, P.A.
777 South Flagler Drive, Suite 300 East
West Palm Beach, FL 33401
Tel.: [Phone Redacted]
whetstonelQutlaw.com
[Email Redacted]
sandralamadasagtlaw.com
[Email Redacted]
FLService©gtlaw.com
Stephen A. Mendelsohn
Florida Bar No. 849324
Greenberg Traurig, P.A.
401 East Las Olas Boulevard, Suite 2000
Fort Lauderdale, FL 33301
Tel.: [Phone Redacted]
mendelsohns©atlaw.com
smithl(agtlaw.com
Michael J. Grygiel
(Admitted Pro Hac Vice)
Greenberg Traurig, P.A.
54 State Street, 6th Floor
Albany, NY 12207
4
EFTA02735041
CASE NO.: 50-2019-CA-014681
Tel.: [Phone Redacted]
[Email Redacted]
Nina D. Boyajian
(Admitted Pro Hac Vice)
Greenberg Traurig, P.A.
1840 Century Park East, Suite 1900
Los Angeles, CA 90067
Tel.: [Phone Redacted]
[Email Redacted]
riveraalagtlaw.com
Counsel for Plaintiff Holdings,
LLC, Publisher of Th each Post
CERTIFICATE OF SERVIC)
I HEREBY CERTIFY that a true and accurate c
all parties of record herein on this I' day of Septe
foregoing has been served on
itilla renrZetstWheotncteone
6"
5
EFTA02735042
EFTA02735043
Date EE Activity Description Rate Hours Line Total
07/15/2021 DW Travel Travel to West Palm Beach $425.00 5.5 $2,337.50
07/17/2021 DW Travel Travel back to Amelia $425.00 5.5 $2,337.50
03/03/2022 DW Travel Travel to West Palm Beach $425.00 8.0 $3,400.00
03/04/2022 DW Travel Travel back to Amelia $425.00 5.5 $2,337.50
Total: 24.5 $ 10,412.50
Cos
EX. A - Non Comp. TRAVEL
EFTA02735044
Exhibit B Nz
EFTA02735045
Date EE Activity Description Rate Hours Line Total
07/15/2021 DW Expense Gas $42.02 1.0 $42.02
07/16/2021 DW Expense The Ben West Palm Beach, re: 7/16/21 hearing $557.46 1.0 $557.46
07/17/2021 DW Expense Gas $59.12 1.0 $59.12
03/03/2022 DW Expense Gas $70.41 1.0 $70.41
03/04/2022 DW Expense Hyatt Place West Palm Beach/Downtown, re: 3/4 hearing $659.92 1.0 $659.92
03/04/2022 OW Expense Uber to Courthouse $6.51 1.0 $6.51
03/04/2022 OW Expense Gas $87.33 1.0 $87.33
Total: $ A
cos
1,482.77
EX. B - Non Comp. COSTS
EFTA02735046
EFTA02735047
Date EE Activity Description Rate Hours Line Total
11/05/2020 DW Draft Draft Amended Motion for Attorneys' Fees & Costs 5425.00 3.0 $1,275.00
11/06/2020 DW Draft Continue drafting Motion for Attorneys' Fees & Costs and Affidavit of
Attorneys Fees and Affidalvt of Reasonable Attorneys' Fees, sent to
expert for review
$42S.00 2.0 5850.00
11/09/2020 DW Various Call w/ expert, re: affidavit; Call w/ Client, re: filings; filed Motion & 5425.00 1.0 5425.00
03/01/2022 DW Various Review and reply to email from op. counsel, re: availability from 3/14 -
5/20; call w/ client call w/ expert
5425.00 1.0 $425.00
03/08/2022 DW Various Call w/ Client, re: upcoming hearing, experts, plan; Meeting w/ 5425.00 1.0 $425.00
03/25/2022 OW Teleconference Call to expert witness, re: fees, updated affidavits, hearing date $425.00 0.2 585.00
7otaf~ &2
O
C
$ 3,485.00
EX. C - Non Comp. FEE TIME
EFTA02735048
Exhibttb A4
EFTA02735049
Date EE Activity Description Rate Hours Line Total
11/26/2019 DW Draft Drafted engagement letter and sent to client $425.00 0.3 5127.50
11/26/2019 OW Review Reviewed 15th circuit local rules 5425.00 1.0 $425.00
12/06/2019 DW Draft Completed final draft of motion to dismiss; filed with Court $425.00 0.7 5297.50
01/24/2020 DW Various Completed Answer/MTDismiss Amended Complaint; filed with Court;
sent copy to Client
5425.00 1.0 5425.00
01/24/2020 DW Draft Drafted and filed Notice of Unavailability $425.00 0.4 5170.00
06/03/2020 DW E-mail Emalled courtesy copies of Aronberg's Answer and MTDismiss to Judge 5425.00 0.1 542.50
06/23/2020 DW E-mail Sent client copy of Prs letter refusing to dismiss complaint $425.00 0.1 $4230
07/01/2020 DW Various Spoke w/ client, re: filing of 57.105 motion for fees/sanctions; filed
motion for attorneys' fees based on PEs failure to voluntarily dismiss
amended complaint count 1
5425.00 0.5 5212.50
08/18/2020 DW Draft Finalized Motion for Summaryludgment; filed w/ court along with
Aronberg affidavit
542 2.0 $850.00
09/18/2020 OW Various Drafted and filed motion to set case management conference; re: MSJ
1st or Fee hearing 1st
0.5 $212.50
09/22/2020 DW various Drafted and filed Notice of Hearing on 10/15/20; set up Court Call;
spoke w/ client, re: hearing date
0.7 5297.50
10/14/2020 DW Draft Finalized and filed Response to Pi's Memo of Law 5425.00 1.0 $425.00
10/21/2020 OW Various Drafted and filed Motion to Set Hearing on Aronberg MSJ; dra
proposed order granting motion to set; checked court bility;
emailed PI'S counsel. re: choose date for hearing
5425.00 1.0 5425.00
11/09/2020 DW Various Call w/ expert, re: affidavit; Call w/ Client, re: fill ; •Ion &
Affidavits
5425.00 1.0 5425.00
12/03/2020 DW Draft & File Draft and File Notice for Non-Jury Trial; e I t • e lh w/ opposing
counsel counsel to set meeting
5425.00 0.7 5297.50
12/10/2020 OW Draft & File Draft and File Amended Notice for .1 Tr 5425.00 0.5 5212.50
07/23/2021 DW Various Complete and File Memo of law en w/ AU to discuss; call to JA;
call to Client; several emails o p unsel
5425.00 2.0 $850.00
07/23/2021 OW Teleconference Call to Judge Hafale's JA, r ing da 5425.00 0.1 $42.50
07/29/2021 DW Draft & File Complete drafting and updat emo of Law 5425.00 2.0 $850.00
08/12/2021 DW Various Complete draft of M o of Ow & filed; reviewed and
responded to s le s w opposing counsel
5425.00 2.0 5850.00
09/13/2021 DW E-mail Accept calen vie for 14 teleconference 542500 0.1 542.50
Total: 17.7 7,522.50
EX. D - Non Comp. ADMIN.
EFTA02735050
EFTA02735051
Date EE Activity Description Rate Hours Line Total
10/21/2020 DW Telephone Spoke w/ client, re: media response $425.00 0.2 $85.00
10/21/2020 DW Telephone Spoke w/ client, re: media response $425.00 0.1 $42.50
10/21/2020 DW Telephone Spoke w/ client, re: media response $425.00 0.1 $42.50
10/21/2020 DW Telephone Spoke w/ client, re: media response $425.00 0.1 $42.50
10/21/2020 DW Telephone Spoke w/ client, re: media response $425.00 0.1 $42.50
10/21/2020 OW E-mail Sent email w/ Aronberg statement to $425.00 0.1 $42.50
10/21/2020 AU Meeting Discussed media response w/ DAW $475.00 0.3 $142.50
10/21/2020 DW Meeting Discussed media response w/ ALI $425.00 0.3. $127.50
Total: 4
cos
567.50
EX. E - Non Comp. MEDIA
EFTA02735052
Exhibit F
EFTA02735053
Date EE Activity Description Rate Hours Line Total
10/15/2020 DW Telephone Spoke w/ PI's counsel, re: settlement $425.00 0.1 $42.50
10/15/2020 DW Telephone Spoke w/ client, re: Pi's settlement proposal $425.00 0.2 $85.00
10/15/2020 AU Various Discussed Pl's settlement proposal w/ DAW and then w/ Client $475.00 0.4 $190.00
10/15/2070 DW Meeting Discussed Pi's settlement proposal w/ All $425.00 0.2 $85.00
10/16/2020 OW Telephone Spoke w/ PI's counsel, re: settlement 5425.00 0.2 $85.00
10/16/2020 DW Telephone Spoke w/ client, re: Plis settlement proposal $425.00 0.5 5212.50
10/16/2020 DW Meeting Discussed Plis settlement proposal w/ All $425.00 0.2 $85.00
10/16/2020 All Meeting Discussed Plis settlement proposal w/ DAW $475.00 0.2 $95.00
10/19/2020 DW Telephone Spoke w/ client, re: Pl's settlement proposal $425.00 0.2 $85.00
10/19/2020 OW Telephone Spoke w/ Pl's counsel, re: settlement $425. 0.1 $42.50
10/19/2020 All Meeting Discussed Pl's settlement proposal w/ DAW $47 . 0.2 $95.00
10/19/2020 DW Meeting Discussed Pl's settlement proposal w/ All il k I 0.2 $85.00
10/20/2020 DW Various Reviewed email from PI, re: settlement; sent copy to Client and
called to discuss
4 0 1 0.5 $212.50
10/20/2020 DW Telephone Spoke w/ client, re: settlement 0.4 $170.00
10/20/2020 DW Telephone Spoke w/ Pl's counsel, re: settlement
Cl/
25.00 0.1 $42.50
10/20/2020 DW Telephone Spoke w/ client, re: settlement $425.00 0.1 $42.50
10/20/2020 DW Meeting Discussed Pi's settlement proposal w/ All $425.00 0.2 $85.00
10/20/2020 All Meeting Discussed Prs settlement proposal w/ DAW n $475.00 0.2 595.00
Total: 4.2 $ 1,835.00
EX. F - Non Comp. SETTLEMENT
EFTA02735054
Exhibit G
EFTA02735055
Date EE Activity Description Rate Hours Line Total
11/26/2019 DW Review Initial review of summons and complaint. 5425.00 1.5 $637.50
11/26/2019 DW Review Reviewed motion for pro hac vice and Judge Hafele order granting 5425.00 0.2 $85.00
11/26/2019 OW Teleconference Teleconference w/ Client, re: response to lawsuit $425.00 0.5 $212.50
11/26/2019 DW Draft Drafted engagement letter and sent to client 5425.00 0.3 $127.50
11/26/2019 DW Review Reviewed 15th circuit local rules 5425.00 1.0 5425.00
1126/2019 AU Review Initial review of complaint $475.05 1.0 5475.00
11/26/2019 AU Meeting Meeting w/ DAW to discuss lawsuit and strategy 5475.00 0.5 5237.50
1126/2019 DW_ Meeting__ Meeting w/ to discuss lawsuit and strategy 5425.00 0.5 $212.50
11/26/2019 AU Teleconference Teleconference w/ Client, re: response to lawsuit $475.00 0.5 $237.50
12/02/2019 DW Research & Preparation Research and prep for Motion to dismiss 5425.00 2.0 $850.00
12/02/2019 OW Draft 1st Draft motion to dismiss $425.00 1.0 $425.00
12/02/2019 OW Teleconference Teleconference w/ Client, re: draft motion to dismiss $42 05 $212.50
12/02/2019 All Review Reviewed 1st Draft MTDIvniss 75. 0.3 $142.50
12/02/2019 AU Teleconference Teleconference w/ client, re: draft motion to dismiss 05 $23750
12/03/2019 All Meeting Meeting w/ DAW, re: motion to dismiss 75.00 0.2 595.00
12/03/2019 DW Meeting Meeting w/ All, re: MTDismiss 25.00 0.2 585.00
12/06/2019 DW Draft Completed final draft of motion to dismiss; filed with Court 5.00 0.7 529750
12/06/2019 DW Teleconference Spoke w/ client, re: final draft of motion to dismiss 425.00 0.5 $212.50
12/06/2019 DW Teleconference Spoke with Clerk's attorney, re: response $425.00 05 $212.50
12/06/2019 Al) Review Reviewed final draft MTDismiss $475.00 0.2 595.03
12/06/2019 Al) Review Reviewed Clerk's MTDIsmIss $475.00 0.2 595.00
12/13/2019 DW Review Reviewed Clerk's Motion to Dismiss S) $425.00 0.5 $212.50
01/16/2020 DW Review Reviewed Order Setting Nearing on Defendants' MTDIs $425.00 0.1 $4250
01/16/2020 DW Review Reviewed motion for pro hac vice $425.00 0.1 $42.50
01/17/2020 DW Review Reviewed Pl's Amended Complaint $425.00 1.0 $425.03
01/17/2020 DW Teleconference Spoke with client, re: Amended Complaint $42.5.00 0.5 5212.50
01/17/2020 DW Review Reviewed IN's notke of filing $425.00 0.1 542.50
01/20/2020 II Review Reviewed PI's Am. Comps $475.00 0.3 $142.50
01/71/7070 OW Review Reviewed Judge Marx's Order Cancel M I easing $425.00 0.1 $4230
01/21/2010 DW Review Reviewed Pi'sObjection to Defeo ts smiss 5425.00 0.2 $85.00
01/21/2020 DW Teleconference Spoke with client, re: Amend m nt $425.00 0.5 $212.50
01/21/2020 Al) Meeting Meeting w/ DAW, re: respo o Am. pl. 5475.00 0.2 $9500
01/21/2020 DW Meeting Meeting w/ AU, re: respon to Compl. $425.00 0.2 585.00
01/22/2020 OW Review Reviewed Order gran' o hac v admission $425.00 0.1 $4230
01/22/2020 OW Research & Draft Researched and dr. • to Amended Complaint 5425.00 1.0 $425.03
01/23/2020 OW Teleconference Spoke with Cler ttor re: response to amended complaint $425.00 0.2 585.00
01/24/2020 DW Various Completed er H ss Amended Complaint; flied with Court; sent copy
to Client
$425.00 1.0 5425.00
01/24/2020 DW Draft Draft nd filed • ce of Unavailability 5425.00 0.4 $170.00
01/24/2020 Al) Review Review Ina! A wer/MTOismiss $475.00 0.2 595.00
01/27/1020 OW Review Reviewe s Answer/MTDismiss 5425.00 0.3 $127.50
02/03/2020 OW Review Sewed Order setting hearing on Deis' MTDismiss $425.00 0.1 54250
02/03/2020 DW Teleconference client, re: order setting MTDismiss hearing for March 24, 2020 $425.00 0.5 521250
03/13/2020 OW Review iewed N's Opposition to Asonberg MTDIsmiss & Clerk's MTDIsmiss $425.00 1.5 $637.50
03/13/2020 Al) Review R ewed Pl's Opposition to Arenberg MTDIsmiss & Clerk's MTDIsmiss 5475.00 0.7 5332.50
03/18/2020 DW Teleconfer ce Reviewed email from Pl's counsel, re: motion to continue hearing 5425.00 0.1 $42.50
03/18/2020 OW Revie Reviewed Pl's unopposed motion for continuance $425.00 0.1 $42.50
03/18/2020 OW E-ma Emails w/ Clerk's counsel, re: N's request to continue hearing 5425.00 0.2 $85.00
03/19/2020 DW Reviewed email from PI, re: agreed order & responded $425.00 0.1 $42.50
03/20/2020 DW R Reviewed Court's agreed order continuing hearing 5425.00 0.1 $42.50
04/21/2020 D Reviewed order rescheduling hearing on Deis' MTDismiss $425.00 0.1 $42.50
04/21/2020 DW onference Spoke w/ Client, re: order rescheduling MTDismiss hearing for June 3, 2020 5425.03 0.3 5127.50
04/21/2020 Al) R Reviewed Order rescheduling MTDismiss hearing $475.00 0.1 $4730
05/22/2020 DW Review Reviewed order setting Zoom hearing, re: MTDismiss 5425.00 0.1 542.50
05/22/2020 OW Teleconference Spoke w/ client, re: hearing will be via ZOOM $425.00 0.2 $85.00
05/27/2020 OW Review Reviewed Clerk's filing: change of atty of record 5425.00 0.1 542.50
05/27/2020 DW Teleconference Spoke with Clerk's new counsel, Nicole Fingerhut 5425.00 0.2 $85.03
05/28/2020 DW E-mail Reviewed N's email, re: cases and authorities for MTDismiss hearing: responded 5425.00 0.1 542.50
05/29/2020 DW Preparation Began oral argument prep for 6/8 MTDismiss hearing 5425.00 1.0 5425.00
06/01/2020 OW E-mail Reviewed email from Judge Marx's JA and responded 5425.00 0.1 $42.60
06/02/2020 DW Various Reviewed Pl's 500.. page binder, re: MTDismiss & prepped for hearing 5425.00 3.0 51,275.00
06/02/2020 DW E-mail Drafted and sent email to client, re: MTD hearing tomorrow $42500 0.1 54250
06/03/2020 OW Attend Hearing Prepped for and attended MTDismiss hearing via Zoom $425.00 1.5 $63750
06/03/2020 OW Teleconference Spoke w/ Client, re: debrief MTDismiss hearing $425.03 03 $212.50
06/03/2020 OW E-mall (mailed courtesy copies of Aronbergs Answer and MTDismiss to Judge Marx $425.00 0.1 $4250
G • Non Comp. (<0 10.14.20
EFTA02735056
Date EE Activity Description T Rate Hours Line Total
06/03/2020 DW E-mail Reviewed response from Client and replied 5425.00 0.1 $42.50
06/03/2020 All Attend Hearing Attended MTDismiss hearing via Zoom 5475.00 1.0 $475.00
06/03/2020 Al) Review Reviewed order granting MTDismIss w/ prejudice 5475.00 0.3 5142.50
06/08/2020 OW Review Reviewed Court's Order Granting Defendants MTDiSmiss Count II w/ Prejudice $425.00 0.5 $212.50
06/08/2020 DW Various Shared order w/ Client and spoke w/. re: result and plan going forward, re: $425.00 0.5 5212.50
06/08/2020 OW Various Researched § 57.105 Fla. Stat.; drafted 57.105 demand letter and proposed
motion for attorneys fees/sanctions; Served Pl's counsel with demand letter and
Proposed motion.
$425.00 2.0 $850.00
06/08/2020 All Meeting Meeting w/ DAW, re: Order & 57.105 $4750f) 0.3 5142.50
06/08/2020 OW Meeting Meeting w/ All, re: Order & 57.105 $425.00 0.3 5127.50
06/08/2020 All Review Reviewed 57.105 demand and proposed motion for sanction 5475.00 0.2 595.00
06/10/2020 DW Various Reviewed notice of change of attorney, re: Clerk; called and spoke w/ new
counsel Cynthia Guerra
$4 0.3 5127.50
06/23/2020 OW Various Reviewed PI% letter refusing to voluntarily dismiss amended complaint despite
57.105 demand; called and spoke w/ client, re: PI% refusal & next steps
1.0 $425.00
06/23/2020 DW E-mail Sent client copy of Pl's letter relusing to dismiss complaint 25.00 0.1 $42.50
06/23/2020 All Review Reviewed PI% letter refusing to dismiss Count I/Am. Compl. 75.00 0.1 547.50
07/01/2020 DW Various Spoke w/ client, re: filing of 57.105 motion for fees/sanctions; filed mots n for
attorneys fees based on Pl's failure to voluntarily dismiss amende t
425.00 0.5 $212.50
07/02/2020 DW Email Email to client, re: affidavit and summary Judgment 5425.00 0.1 $42.50
07/08/2020 DW Teleconference Discussed w/ Client drafting and filing Motion for Summary Judg nt and 5.1 $425.00 0.7 $297.50
07/08/2020 All Teleconference Discussed w/ Client drafting and Kling Motion for Summa Judg MS.I $475.00 0.7 5332.50
07/10/2020 OW Draft Created 1st draft of Aronberg Affidavit; shared w/ cute $425.00 1.0 $425.00
07/10/2020 All Various Reviewed draft affidavit and discussed w/ DAW $475.00 0.3 5142.50
07/10/2020 OW Meeting Discussed draft affidavit w/ Ail $425.00 0.2 $85.00
07/13/2020 OW Review Reviewed PI% Request to Produce, re: Clerk 5425.00 0.1 $42.50
07/13/2020 DW Teleconference Spoke w/ Clerk's counsel, re: Request to Pr ce 5425.00 0.2 $85.00
07/27/2020 OW Review Reviewed Pl's Amended Request to Pro Cle $425.00 0.1 $42.50
07/27/2020 OW Trier nnterenr r Spoke w/ Clerk's counsel, re: Amen est roduce 5425.00 0.1 542.50
07/28/2020 OW Draft Revised Aronberg affidavit $425.00 0.5 $212.50
07/29/2020 DW Draft Finalized Aronberg Affidavit a cli $475.00 n.s $212.50
07/29/2020 DW Research & Preparation Research and prep for Mot Sum Judgment $425.00 1.0 $425.00
07/30/2020 OW Various Received executed Aronbe A vet 5425.00 0.1 $42.50
07/30/2020 OW Draft Began drafting Moti mma Judgment 5425.00 2.0 $850.00
08/05/2020 OW Draft Continued draftin mmary Judgment $425.00 1.0 $425.00
08/07/2020 OW Review Reviewed ema' r m tiff attempting to set hearing on 57.105 motion Ice
fees/sanct'
$425.00 0.1 542.50
08/10/2020 OW E-mail Sent r a PI% counsel $425.00 0.1 $42.50
08/17/2020 DW Meeting Discus draft M /AO $425.00 0.2 $85.00
08/17/2020 Al) Various Revie draft Si and met w/ DAW to discuss 5475.00 0.5 5237.50
08/18/2020 DW Draft Finalized n for Summary Judgment; filed w/ court along with Aronberg $425.00 2.0 5850.00
08/27/2020 DW Teleconference ke w/ Clerk's counsel, re: request to produce $425.00 0.1 542.50
09 01/2020 DW Various PI% email and acce led conference call Invite for 9/2 20 5425.00 0.1 $42.50
09/021E020 OW Review Clerk's response to request for production $425.00 0.2 $85.00
09/02/7020 OW Teleconfer ke w/ Pt'scounsel, re: dispute as to whether M51 should be heard before
57.10$ fee motion or es versa - call was unsuccessful
$425.00 0.5 $212_50
09/02/2020 All Meeti Discussed w/ DAW phone call w/ Pi's counsel $475.00 0.2 $9500
09/02/2020 OW M Discussed w/ All phone call w/ PI% counsel $425.00 0.2 $85.00
09/16/2020 OW a Reviewed email from Pl's counsel requested Aronberg to withdraw sanctions
motion w/o prejudice
$425.00 0.1 $42.50
09/17/2020 D Discussed w/ All filing motion for CMC 5425.00 0.1 542.50
09/17/2020 Al) , eeting Discussed w/ DAW filing motion for CMC $475.00 0.1 $47.50
09/18/2020 OW V ous Drafted and filed motion to set case management conference; re: MSI 1st or Fee
hearing 1st
$425.00 0.5 $212.50
09/18/2020 OW E-mail Responded to Pl's 9/16/20 email and ref used to withdraw 57.105 motion:
Jsrovided copy of motion to set CMC and available dates for hearing
$425.00 0.1 542.50
09/18/2020 OW E-mail Reviewed Pl's email insisting that 57.105 motion be withdrawn $425.00 0.1 $4250
09/18/2020 DW E-mail Replied to PI% counsel that the 57.105 motion for sanctions will not be
withdrawn and asking for response, re: CMC
5425.00 0.1 542.50
09/18/2020 OW E-mail Sent client copy of email exchange w/ Pi's counsel; called and spoke w/ Client $425.00 0.5 $212.50
09/22/2020 OW Various Drafted and filed Notice of Rearing on 10/15/20; set up Court Call; spoke w/
client, re: hearing date
$425.00 0.7 $297.50
10/02/2020 OW Review Reviewed Pl's Memo of Law opposing Aronberg's
57.105 motion for fees/sanctions
5425.00 0.7 $297.50
EX. G - Non Comp. (cm) 10.14.20
EFTA02735057
Date EE Activity Description Rate Hours tine Total
10/02/2020 DW Review Reviewed Pl's Response to Aronberg's request to schedule 57.105 motion for fees
after MS1
$425.00 0.5 5212.50
10/02/2020 AU Review Reviewed Pl's Memo of Law opposing 57.105 motion $475.00 0.5 $237.50
10/02/2020 All Review Reviewed Pis Response to Aronberg's request to schedule 57.105 motion after $475.00 0.4 $190.00
10/12/2020 OW Research Research caselaw & statutes, re: response to Prs Memo of Law $425.00 1.0 $425.00
10/13/2020 OW Research & nnalwe Continued researching caselaw, re: response to Pl's memo Of law $425.00 1.0 5425.00
10/13/2020 OW Draft Created 1st draft of Response to Pl's Memo of Law and shared w/ Client $425.00 4.0 51.700.00
10/13/2020 OW Meeting Discussed w/ All caselaw and draft response to memo $425.00 0.5 $212.50
10 13 2020 AU various Reviewed draft MS1, discussed draft w/ DAW and caselaw $475.00 0.7 $332.50
10/14/2020 OW Draft Finalized and filed Response to Pis Memo of Law $425.00 1.0 $425.00
10/14/2020 OW Telephone Spoke w/ client, re: memo of law $42500 0.2 585.00
10/14/2020 OW Telephone Spoke w/ client again, re: response to memo of law $4251W 0.1 $42.50
63.6 $ 27,$60.00
cos
EX. G - Non Comp. (cat 10.14.20
EFTA02735058
Exhibit H
EFTA02735059
Date FE Activity Description Rate Hours tine Total
11/26/2019 OW Review Initial review of summons and complaint. $425.00 1.5 $637.50
11/26/2019 DW Review Reviewed MOHOn for pro hac vice and Judge Hafele• order granting 5425.00 0.2 585.00
11/26/2019 DW Teleconference Teleconference w/ Client, re: response to lawsuit $425.00 0.5 5212.50
11/26/2019 OW Draft Drafted engagement letter and sent to client 5425.00 0.3 $127.50
11/26/2019 OW Review Reviewed 15th circuit local rules 5425.00 1.0 $425.00
11/26/2019 All Review Initial review of complaint $475.00 1.0 $475.00
11/26/2019 411 Meeting Meeting w/ DAW to discuss lawsuit and strategy 5475.00 0.5 $237.50
11/26/2019 OW Meeting Meeting w/ All to discuss lawsuit and strategy $425.00 0.5 $212.50
11/26/2019 AU Teleconference Teleconference w/ Client, re: response to lawsuit 5475.00 0.5 5237.50
12/02/2019 OW Research & Preparation Research and prep for Motion to dismiss $425.00 2.0 5850.00
12/02/2019 DW Draft ist Draft motion to dismiss $42 . 1.0 $425.00
12/02/2019 DW Teleconference Teleconference w/ Client, re: draft motion to dismiss 0.5 $212.50
12/02/2019 AU Review Reviewed 1st Draft MTDismiss 75. 0.3 $142.50
12/02/2019 AU Teleconference Teleconference w/ client, re: draft motion to dismiss 75.00 0.5 $237.50
12/03/2019 All Meeting Meeting w/ DAW, re: motion to dismiss 75.00 0.2 595.00
12/03/2019 DW Meeting Meeting w/ All, re: MTDismiss 5.00 0.2 $85.00
12/06/2019 DW Draft Completed final draft of motion to dismiss; filed with Court $425.00 0.7 5297.50
12/06/2019 DW Teleconference Spoke w/ client, re: final draft of motion to dismiss $425.00 0.5 $212.50
12/06/2019 DW Teleconference Spoke with Clerk's attorney, re: response $425.00 0.5 5212.50
12/06/2019 AU Review Reviewed final draft MTDismiss $475.00 0.2 595.00
12/06/2019 AU Review Reviewed Clerk's MTDismiss $475.03 0.2 $95.00
12/13/2019 DW Review Reviewed Clerk's Motion to Dismiss 5425.00 0.5 $212.50
01/16/2020 DW Review Reviewed Order Setting Hearing on Detention M is $425.00 0.1 $42.50
01/16/2020 DW Review Reviewed motion for pro hac vice $425.00 0.1 542.50
01/17/2020 DW Review Reviewed Prs Amended Complaint $425.00 1.0 $425.00
01/17/2020
01/17/2020
DW Teleconference Spoke with client, re: Amended Co I $425.00 0.5 $21230
DW Review Reviewed Prs notice of filing $425.00 0.1 542.50
01/20/2020 All Review Reviewed Prs Am. Compl $475.00 0.3 5142.50
01/21/2020 DW Review Reviewed Judge Marx's Cance TDIsmiss Hearing $425.00 0.1 542.50
01/21/2020 OW Review Reviewed Prs Objection t De ants' MTDismiss $425.00 0.2 585.00
01/21/2020 DW Teleconference Spoke with client, r nded c plaint $425.00 0.5 5212.50
01/21/2020 All Meeting Meeting w/ DA to Am. Come'. 5475.00 0.2 $95.00
01/21/2020 DW Meeting Meeting w/ ,r • res to Am. Comp!. $425.00 0.2 $85.00
01/22/2020 OW Review Reviewed rant pro hac vice admission 5425.00 0.1 542.50
01/22/2020 DW Research & Draft Rea ad ed response to Amended Complaint 5425.00 1.0 542540
01/23/2020 OW__ Teleconference _ Spoke ith Cle 's attorney, re: response to amended complaint $425.00 0.2 585.00
01/24/2020 OW Various Console wer/MTDismiss Amended Complaint; filed with Court; sent
o y tO Client
$425.00 1.0 $425.00
01/24/2020 DW Draft and filed Notice of Unavailability 5425.03 0.4 5170.00
01/24/2020 AU Review eviewed final Answer/MTDismiss $475.00 0.2 595.00
01/27/2020 DW Review viewed Clerk's Answer/MTDismiss $425.00 0.3 5127.50
02/03/2020 DW Review Reviewed Order setting hearing on Defs' MTDismiss 5425.00 0.1 542.50
02/03/2020 DW Te ce Spoke w/ client, re: order setting MTDismiss hearing for March 24, 2020 5425.00 0.5 5212.50
03/13/2020 DW Reviewed Prs Opposition to Aronberg MTDismiss & Clerk's MTDismiss 5425.00 1.5 $637.50
03/13/2020 All i Reviewed Prs Opposition to Aronberg MTDismiss & Clerk's MTDismiss 5475.00 0.7 $332.50
03/18/2020 D nference _ Reviewed email from Prs counsel, re: motion to continue hearing $425.00 0.1 542.50
03/18/2020 DW Review Reviewed Prs unopposed motion for continuance 5425.00 0.1 542.50
03/18/2020 DW ail Emails w/ Clerk's counsel, re: Prs request to continue hearing 5425.00 0.2 $85.00
03/19/2020 DW E-mail Reviewed email from PI, re: agreed order & responded $425.00 0.1 542.50
03/20/2020 DW Review Reviewed Court's agreed order continuing hearing $425.00 0.1 $42.50
04/21/2020 DW Review Reviewed order rescheduling hearing on Defs' MTDismiss $425.00 0.1 $42.50
04/21/2020 DW Teleconference Spoke w/ client, re: order rescheduling MTDismiss hearing for lune 3, 2020 $425.00 0.3 5127.50
04/21/2020 AU Review Reviewed Order rescheduling MTDismiss hearing $475.00 0.1 $47.50
05/22/2020 DW Review Reviewed order setting Zoom hearing, re: MTDismiss 5425.00 0.1 $42.50
05/22/2020 DW Teleconference Spoke w/ client, re: hearing will be via Zoom $425.00 0.2 $85.00
05/27/2020 DW Review Reviewed Clerk's filing: change of atty of record $425.00 0.1 $42.50
05/27/2020 OW Teleconference Spoke with Clerk's new counsel, Nicole Fingerhut $425.00 0.2 $85.00
05/28/2020 DW E-mail Reviewed Prs email, re: cases and authorities for MTDismiss hearing; 5425.00 0.1 542.50
05/29/2020 DW Preparation Began oral argument prep for 6/8 MTDismiss hearing $425.00 1.0 $425.00
DC. H - Non Comp. (c) 7.1.20
EFTA02735060
Date EE Activity Description Rate Hours Line Total
06/01/2020 DW E-mail Reviewed email from Judge MareslA and responded $425.00 0.1 $42.50
06/02/2020 OW Various Reviewed Prs 500. page binder, re: MTDismiss & prepped for bearing $425.00 3.0 $1,275.00
06/02/2020 DW E-mail Drafted and sent email to client, re: MTO hearing tomorrow $425.00 0.1 $42.50
06/03/2020 OW Attend Hearing Prepped for and attended MTDismiss hearing via Zoom $425.00 1.5 $637.50
06/03/2020 DW Teleconference Spoke w/ Client, re: debrief MTDismiss hearing $425.00 0.5 $212.50
06/03/2020 DW E-mail Emaded courtesy copies of Aronberes Answer and MTDismiss to Judge Marx $425.00 0.1 $42.50
06/03/2020 DW E-mail Reviewed response from Client and replied 5425.00 0.1 $42.50
06/03/2020 Ail Attend Hearing Attended MTDismiss hearing via Zoom 5475.00 1.0 $475.00
06/03/2020 All Review Reviewed order granting MTOismtss w/ prejudice $475.00 0.3 514250
06/08/2020 DW Review Reviewed Court's Order Granting Defendants MTDismiss Count II w/ Prejudice 5425.00 0.5 $212.50
06/08/2020 DW Various Shared Order w/ Client and spoke w/, re: result and plan going foment re: $42 . 0.5 $212.50
06/08/2020 DW Various Researched § 57.105 Fla. Stet; drafted 57.105 demand letter and proposed
motion for attorneys' fees/sanctions; Served Prs counsel with demand letter
and proposed motion.
. 2.0 $850.00
06/08/2020 AU Meeting Meeting w/ DAW, re: Order & 57.105 75.00 0.3 $142.50
06/08/2020 DW Meeting Meeting w/ Alt re: Order & 57.105 .00 0.3 $127.50
06/08/2020 AU Review Reviewed 57.105 demand and proposed motion for sanction s $475.00 0.2 $95.00
06/10/2020 DW Various . Reviewed notice of change of attorney, re: Clerk; called and spo V7.n
counsel Cynthia Guerra
$425.00 0.3 $127.50
06/23/2020 DW Various Reviewed Prs letter refusing to voluntarily dismiss amended co n
despite 57.105 demand; called and spoke w/ client, re' usal & next
$425.00 1.0 $425.00
06/23/2020 DW E-mail Sent client copy of Prs letter refusing to dismiss co aint $425.00 0.1 $42.50
06/23/2020 All Review Reviewed Prs letter refusing to dismiss Count V I. $475.00 0.1 547.50
07/01/2020 DW Various Spoke w/ client, re: filing of 57.105 motion f es n i s; filed motion for
attorneys' fees based on Prs failure to voiukan ism amended complaint
count 1 ..a.
$425.00 0.5 $212.50
Total: 37.9 $ 16,447.50
G"¢
EX. H • Non Comp. (<=) 7.1.20
EFTA02735061
EFTA02735062
Date EE Activity Description Rate Hours line Total
03/25/2021 DW Review Review Notice of Change of Counsel 5425.00 0.1 $42.50
10/01/2021 DW Review & Analyze Review Clerk's response to MS1 $425.00 0.5 $212.50
10/05/2021 DW Review & Analyze Review Order, re: MSJ hearing on 10/22/21 5425.00 0.1 $42.50
10/05/2021 DW Review & Analyze Review PI'S Reply in support of MSJ $425.00 0.5 $212.50
11/02/2021 DW E-mail Reviewed several emalls b/w opposing counsel $425.00 0.2 585.00
11/05/2021 DW E-mail Reviewed several entails b/w opposing counsel 5425.00 0.2 $85.00
12/20/2021 OW Various Review & Analyze Final Judgment in favor of Clerk, meeting w/
AU, call client to discuss
$425.00 1.5 $637.50
12/20/2021 AU Meeting Meeting w/ DAW, re: MSI Order $475.00 0.5 $237.50
12/21/2021 DW E-mail Review email from Op. Counsel $425.00 .1 $42.50
01/04/2022 OW Review Review Clerk's Motion to Amend Final Judgment $425.00 .1 $42.50
01/04/2022 OW Review Reviewed Clerk's Notice of Appearance $425. 1 542.50
01/12/2022 DW E-mail Reviewed and replied to email from Op. Counsel 542 s. • 0. $85.00
01/19/2022 DW Review & Analyze Reviewed and replied to email from Op. Counsel $4 - 71 0.5 $212.50
01/26/2022 DW Review Review Notice of Withdrawing Motion to Amend PI - , , 0.1 $42.50
01/26/2022 DW E-mail Emailed Clerk's Motion for Sanctions to Client I 0.1 542.50
01/27/2022 OW Review Review N's Notice of Appeal • I I 0.1 $42.50
01/28/2022 OW Review Reviewed 40CA Order, re: abeyance $425.00 0.1 $42.50
03/10/2022 DW E-mail Reviewed and replied to email form Clerk's counsel $425.00 0.2 585.00
03/30/2022 DW Review Review Motion to Withdraw / 1.11‘ 5425.00 0.1 542.50
Total: 5.3 2,277.50
EX. I - Non Comp. CLERK
EFTA02735063