In re: Rothstein Rosenfeldt Adler, P.A. et al

Filing 143

ORDER denying 136 Motion for Writ of Habeas Corpus ad testificandum; denying 137 Motion to Amend Order; denying 137 Motion for Clarification. Signed by Judge James I. Cohn on 3/20/2012. (prd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-61338-CIV-COHN

In Re: ROTHSTEIN ROSENFELDT ADLER, P.A.,
Debtor.
________________________________________/
ORDER DENYING MOTIONS OF THE RAZORBACK VICTIMS
THIS CAUSE is before the Court upon the Razorback Victims’ Motion for
Issuance of Writ of Habeas Corpus Ad Testificandum [DE 136], the Razorback Victims’
Motion for Clarification or, Alternatively, Motion Altering or Amending Order Granting the
Motions of the Trustee and Jeffrey Epstein to Issue a Writ of Habeas Corpus Ad
Testificandum [DE 137], the Trustee’s Response [DE 138], Edward J. Morse’s Response
[DE 139/140], Morse Operations, Inc.’s Response [DE 141], and the Razorback Victims’
Omnibus Reply [DE 142]. The Court has carefully considered all of these filings and the
entire record in this action, and is otherwise fully advised in the premises.

I. BACKGROUND1
Scott Rothstein (“Rothstein”), the central figure in a criminal action brought by the
United States of America regarding fraudulent activities undertaken by Rothstein while
he controlled the now bankrupt law firm of Rothstein, Rosenfeldt & Adler, P.A. (“RRA”),
was examined in the RRA bankruptcy proceeding and deposed from December 12
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For additional background, the Court refers the parties to its Orders entered at
docket entries 32, 50, 85, and 129, available at In re RRA, 2011 WL 2620187 (S.D. Fla.
July 1, 2011); In re RRA, 2011 WL 3903567 (S.D. Fla. Sept. 6, 2011); In re RRA, 2011
WL 5914242 (S.D. Fla. Nov. 28, 2011); In re RRA, 2012 WL 463832 (S.D. Fla. Feb. 13,
2012).

through December 22, 2011, by various parties in some of the related civil actions
pending in federal and state courts. These parties previously had filed motions to
depose Rothstein in the RRA bankruptcy proceeding, resulting in the Bankruptcy Court
certifying its order to this Court for its approval, as Rothstein is currently serving a
sentence imposed by this Court in Case No. 09-60331-CR. Because the Trustee filed
additional adversary actions against numerous parties just prior to the December
deposition, the Trustee and several other parties sought a second deposition. On
February 13, 2012, the Court granted the Trustee’s motion and directed that a second
ten-day deposition of Scott Rothstein would take place commencing June 4, 2012. See
Order Granting the Motions of the Trustee and Jeffrey Epstein to Issue a Writ of Habeas
Corpus ad Testificandum [DE 129]. The Court concluded that an additional ten day
period was more than sufficient for questioning of Rothstein on all of the pending
adversary actions and non-bankruptcy actions involving the relevant parties.

II. DISCUSSION
In the February 13, 2012 Order, the Court noted that:
As for parties who participated in the first deposition, such as the
Razorback victims, the Trustee contends that further participation would
open the door to several other parties who participated in the first
deposition to seek additional involvement. The Razorback victims only
seek further participation if their opponents in their private actions, the
Insurers, are allowed to participate. However, because the Razorback
victims already participated, the Court will grant them access to the
deposition to observe the Insurers’ questioning of Rothstein, but absent a
demonstration of specific need, the Razorback victims will not be allowed to
further question Rothstein.
The Court did not address the Razorback Victims’ reference to their separate

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state court action against Edward J. Morse, Jr. and Ed Morse Automotive Group
(collectively, “Morse Defendants”), filed during the first Rothstein deposition on
December 13, 2011. The Razorback Victims now seek an order allowing them to ask
Rothstein questions about the Morse Defendants during the second deposition in June.
The relief is opposed by the Morse Defendants because: 1) the Razorback Victims
already asked questions about the Morses during Rothstein’s first deposition; 2) the
underlying claims against the Morse Defendants in state court may be dismissed; and 3)
granting this relief would circumvent local and state rules of civil practice.2
The Razorback Victims contend that although they did ask Rothstein various
questions about the Morse Defendants at the December deposition, they did so over
objection of the Morses’ counsel, and fear that this deposition testimony may not be
admissible in their state court action. They contend that Rothstein is the only witness to
the Morses’ alleged involvement in the underlying scheme, that no motion to dismiss has
yet been filed in the underlying state court action, and that the Morse Defendants are
simply seeking to thwart legitimate discovery.
The Morse Defendants argue that the claims against them are weak and subject
to dismissal from an upcoming (March 22) filing of a motion to dismiss in the underlying
action in state court. They assert that the Razorback Victims are circumventing state
court rules and process by obtaining additional Rothstein testimony prior to the resolution

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The Trustee has no objection to the extent the Razorback Victims seek a third
deposition or an extension of the ten day period set in the second deposition. The
Trustee states that if “the [Feb. 13, 2012] Order referenced is this Court’s final position
on the issue of Rothstein’s second deposition, then the Trustee believes this is an issue
the Court intended to reserve for Judge Ray.” Trustee’s Response at 1.
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of a motion to dismiss. Finally, they contend that the Razorback Victims have not shown
sufficient cause to again question Rothstein given the early state of the underlying
litigation.
The Razorback Victims attempt to favorably compare their situation to that of
Jeffrey Epstein, a state court litigant whose motion to depose Rothstein was granted by
this Court. The Razorback Victims contend that they are “at the heart” of the Ponzi
scheme as compared to Epstein. However, there are some important distinctions
between Epstein and the Razorback Victims. First, Epstein’s state court action against
Rothstein and former RRA partner Bradley Edwards is further along. Epstein attempted
to secure a deposition through his state court action, but the state court judge concluded
he did not have the authority to issue a writ. As the Morse Defendants contend, the
Razorback Victims have not obtained approval from the state court judge to take
discovery in that action. More importantly, that action still must go through the motion to
dismiss stage. The Morse Defendants argue that they are prejudiced if they have to
defend this deposition prior to seeking dismissal of the claims.
As for the relative position of Epstein and the Razorback Victims, the Court
disagrees that Epstein is on the “periphery” of the Ponzi scheme. Rothstein had
personal involvement in the civil actions filed against Epstein, which were the basis for
the structured settlements that were used to perpetuate the Ponzi scheme. Upon
consideration of all of the arguments, the Court concludes that the Razorback Victims
have not shown sufficient cause at this time to again depose Rothstein.

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III. CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that the Razorback
Victims’ Motion for Issuance of Writ of Habeas Corpus Ad Testificandum [DE 136] and
the Razorback Victims’ Motion for Clarification or, Alternatively, Motion Altering or
Amended Order Granting the Motions of the Trustee and Jeffrey Epstein to Issue a Writ
of Habeas Corpus Ad Testificandum [DE 137] are hereby DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, on this 20th day of March, 2012.

cc: copies to counsel of record on CM/ECF
(Trustee’s counsel shall forward this Order to any party
not receiving notice via CM/ECF)

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