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Case No.: 502009CA040800XXXXMBAG
Edwards' Opposition to Epstein's Motion for Summary Judgment
Page 12 of 15

reliance on public filings, including the Scherer Complaint against Rothstein is unavailing. As discussed
above, the evidence warrants the finding that Epstein knew that Edwards was legitimately pursuing the
claims on behalf of his clients which included the effort to secure testimony from Epstein’s close
confidants. Therefore, Epstein cannot rely upon the referenced public documents to support his claims
against Edwards given that he knows that information to be untrue and he refuses to answer questions
about the veracity of the information. See Exh. G at pgs. 53:6-24; 78:16-24; 87:20-88:14. Consequently,
Epstein had no good faith basis to rely on such information.

Epstein’s Assertion of his Fifth Amendment Privilege Gives Rise to Adverse Inferences
Pertinent to His Motion for Summary Judgment and Precludes His Reliance on Purported
Undisputed Facts

As discussed above, Epstein’s multiple invocations of his Fifth Amendment Privilege results in
adverse inferences which directly impact the issues advanced in his Motion for Summary Judgment. “It
is well settled that the Fifth Amendment does not forbid adverse inferences against parties to civil actions
when they refuse to testify in response to probative evidence offered against them.” Baxter v.
Palmigiano, 425 U.S. 308, 318 (1976); Accord, Vasquez v. State, 777 So. 2d 1200, 1203 (Fla. at 2001).
The reason for this rule “is both logical and utilitarian. A party may not trample upon the rights of others
and then escape the consequences by invoking a constitutional privilege – at least not in a civil setting.”
Fraser v. Security and INV. Corp, 615 So. 2d. 841, 842 (Fla. 4th DCA 1993). The adverse inferences
drawn from Epstein’s assertion of the Fifth Amendment undercut his claim of justifiable reliance based
upon the purported undisputed material facts to support his Motion for Summary Judgment.

Moreover, because Epstein elected to hide behind the shield of his right against self-incrimination
to preclude his disclosing any relevant information about the criminal activity at the center of his claims,
he was effectively barred from prosecuting his abuse of process claim against Edwards. Similarly, Epstein
should be barred from utilizing the Fifth Amendment privilege to secure summary judgment based upon
assertions of fundamental facts when Epstein refused to testify on essential issues pertinent to the

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