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Case No.: 502009CA040800XXXXMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 13 of 15

arguments advanced in support of his Motion for Summary Judgment. Under the well-established “sword and shield” doctrine, Epstein could not seek damages from Edwards while at the same time asserting a Fifth Amendment privilege to block relevant discovery. See Exhs. B at 14-21, C at 18-25, G at 53:6-24; 78:16-24; 87:20-88:14. The same policies which underlie the sword and shield doctrine as applied to the recovery of affirmative relief should also apply to attempts to advance positions with respect to a Motion for Summary Judgment which would have the effect of securing relief against certain claims.

“[T]he law is well settled that a plaintiff is not entitled to both his silence and his lawsuit.” Boys & Girls Clubs of Marion County, Inc. v. J.A., 22 So. 3d 855, 856 (Fla. 5th DCA 2009)(Griffin, J., concurring specially). Thus, “a person may not seek affirmative relief in a civil action and then invoke the fifth amendment to avoid giving discovery, using the fifth amendment as both a ‘sword and a shield.’” DePalma v. DePalma, 538 So. 2d 1290, 1290 (Fla. 4th DCA 1989)(quoting DeLisi v. Bankers Insurance Co., 436 So. 2d 1099 (Fla. 4th DCA 1983)). Put another way, “[a] civil litigant’s fifth amendment right to avoid self-incrimination may be used as a shield but not a sword. This means that a plaintiff seeking affirmative relief in a civil action may not invoke the fifth amendment and refuse to comply with the defendant’s discovery requests, thereby thwarting the defendant’s defenses.” Rollins Burdick Hunter of New York, Inc. v. Euroclassic Limited, Inc., 502 So. 2d 959 (Fla. 3d DCA 1983).. For the same reasons, Epstein should be precluded from advancing arguments based on purported statements of undisputed fact which cannot be effectively challenged in light of his assertion of the Fifth Amendment. Epstein has done precisely what well-established law prohibits.

Conclusion

Based upon the foregoing, the Defendant, Counter-Plaintiff, Bradley Edwards respectfully submits that Jeffrey Epstein’s Motion for Summary Judgment must be denied.

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