07/10 08:38
00:00:05 All right, good morning folks.
00:00:08 We are on record in the matter of Seth Kroenke versus Treasure chest LLC and Randy Elliott, case number 3AN20-08622.
00:00:17 Civil parties and counsel are present.
00:00:21 Jury is absent, mostly collected.
00:00:24 We're still missing one juror at the moment, but should be here momentarily.
00:00:29 So I had a couple of preliminary matters that I wanted to address.
00:00:34 First, as we figured out at the end of our jury selection yesterday, we didn't go through the list of witnesses with them.
00:00:41 I'd like to make sure we do that before we actually swear the jury this morning, just to make sure there isn't somebody else on the panel that we may have overlooked and we don't have an issue there.
00:00:51 Let's the parties want to do it I've been happy to just read the witness list the list of names to them that basically explain Just want to make sure folks so any issue with that.
00:01:01 No, not at all.
00:01:02 I just wanted to I always spoke mr Campion about this, but when mr Benji and I were entering the courtroom the jurors were seated by the bench in the window I believe
00:01:12 Ms.
00:01:13 Terwitzki said good morning.
00:01:15 We just nodded our head and continued.
00:01:17 But I wanted to let the court know that we did have an interaction with the jury.
00:01:20 Okay.
00:01:21 Thank you for that.
00:01:23 Hopefully we'll, I'll remind them again as part of the instructions this morning, but nobody intends rudeness by that process, but that's the way it works.
00:01:33 Second issue that I had on my list, I gave you all a draft instruction of what I was going to
00:01:40 suggest to the jurors simply because of the fact that we've got all the same witnesses and there's claims and counterclaims.
00:01:47 We talked about that briefly yesterday and my preference at least to take the witness testimony on a witness-by-witness basis instead of going back and forth given the claims.
00:01:58 Parties have a chance to consider that?
00:02:02 We did, Your Honor, and I think we can even make it simpler for you.
00:02:06 After discussion with Mr. Campion, Mr. Campion is not quite sure
00:02:10 who he's going to be calling he'll probably know at the end of today but here's our plan your honor at the end of our case in chief we plan on reading realistically four sentences five sentences from the depositions of Mr. Kampen's witnesses
00:02:30 If Mr. Campion decides that he's going to call these witnesses, then obviously we will just cross-examine them in due course, and reading of the deposition will not be necessary.
00:02:39 So I don't believe there's a scenario, Your Honor, where we will be calling his witnesses, doing a hostile cross, and then a direct, and then reversing the process in Mr. Campion's case in chief.
00:02:51 So I think it's much more streamlined than we originally thought.
00:02:55 Okay.
00:02:55 Mr. Campion?
00:02:56 I agree with Mr. Brzezinski, Your Honor.
00:02:58 So it sounds like my instruction is probably unnecessary then.
00:03:01 Probably, I think.
00:03:04 If it turns out it's necessary later, we can address it then.
00:03:08 I won't plan to give it as a preliminary instruction then at this point.
00:03:10 We'll just take it as it goes.
00:03:13 Just for the record, if we do end up using this instruction, which it doesn't sound like we would, I'd want to talk with the court about the first paragraph where we're listing all of Mr. Elliott's claims but only one of Mr. Kroenke's claims.
00:03:29 And so I'd want to even that out or edit it before we submit it.
00:03:32 I simply took it out of the jury instructions that you all gave me.
00:03:36 I understand.
00:03:37 I'm just trying to make sure for the record so we don't slip it in later without discussing it further.
00:03:41 Fair enough.
00:03:46 Two other issues that I still had.
00:03:47 One in terms of the motion and limine relating to damages for abuse of process.
00:03:52 I'm still working my way through that.
00:03:54 I may want to have you all give me some argument on that point.
00:03:59 We'll see where we are at the end of the day today.
00:04:01 It doesn't sound like that's going to be an issue that's going to come up today anyway, probably not even tomorrow, so I've got a little bit of time it sounds like.
00:04:10 And then the final issue I had on my list is your objection to the exhibit, Mr. Bedinger.
00:04:15 And this was for the record, I think.
00:04:30 It's plaintiff's exhibit 14.
00:04:33 It's also defendant's exhibit A.
00:04:38 and the objection that was made and argued yesterday essentially is that Mr. Elliott didn't author the exhibit and that he can't essentially testify because he wasn't the author it was written by his lawyer I've considered that objection
00:04:56 based upon the proffer that was given by Mr. Campion about what Mr. Elliott would testify.
00:05:01 The information that's contained in that exhibit was provided by Mr. Elliott.
00:05:06 He can testify certainly to the expenses regardless of whether or not there are receipts to back him up.
00:05:13 That certainly goes to the weight that can be argued about it.
00:05:18 So I'm not going to grant preclusion of the exhibit at this point, but by the same token, I'm also not saying it can be admitted.
00:05:24 It appears to me to be more of a demonstrative exhibit.
00:05:28 I'm going to wait until I've heard Mr. Elliott's testimony before I make a final ruling as to whether the jury gets to consider it as part of the exhibits.
00:05:36 You can certainly testify about it.
00:05:37 There may be other uses for it.
00:05:39 It may be admissible under some other basis, but I'm not going to preclude it at this point in time.
00:05:45 But since I'm also not agreeing to admit it, please don't show it in opening.
00:05:49 You can talk about expenses, but don't show it as an exhibit in opening.
00:05:52 So that's my ruling on your exhibit.
00:05:54 Mr. Bedinger, any questions about that?
00:05:58 No, your honor.
00:05:58 I agree.
00:05:58 That's a fair approach.
00:05:59 I also agree that the use of the exhibit is probably as a demonstrative exhibit.
00:06:04 As we thought about this objection more yesterday, I think the objection is most easily viewed as a hearsay objection.
00:06:12 And so, in my opinion, the analysis for the court after we hear the proffer is, is this document hearsay?
00:06:19 Was it an out-of-court statement made by a declarant who's not here, can't be crossed, and is it being offered for its truth?
00:06:24 And if it is hearsay, is there any exception that applies to it?
00:06:27 And so unless something changes in the proffer, my opinion is still that it is hearsay with no exception that applies to it.
00:06:33 So we will still most likely ask that it be excluded, but I think the court's approach right now is fair.
00:06:38 Okay.
00:06:39 Well, hearsay wasn't argued yesterday, so I'm not making a ruling on hearsay.
00:06:44 I certainly understand the argument, but again, we'll take that up as it comes in the evidence at this point.
00:06:53 I have an exhibit list from each of you now.
00:06:55 Thank you for that.
00:06:56 Thank you for providing the court's copy on a thumb drive.
00:06:58 That'll make things simple for me working through them.
00:07:01 Do we have any issues that we need to address before opening with respect to the exhibits?
00:07:06 I wouldn't say an issue, Judge, but in the continued spirit of cooperation, Mr. Campion, we have agreed that
00:07:15 THE EXHIBITS CAN JUST BE ADMITTED.
00:07:17 NEITHER PARTY HAS TO LAY A FOUNDATION FOR THEM OR PREDICATE.
00:07:20 WE CAN JUST ASSUME THEY'RE ADMITTED AND WE CAN USE THEM AS SUCH, OBVIOUSLY WITH THE EXCEPTION OF THE DOCUMENT THAT'S STILL IN QUESTION.
00:07:29 ALL OF THEM?
00:07:30 WELL, AT THIS POINT, I WANT TO HESITATE.
00:07:31 WE ASSURE DEPOSITION AND TRANSCRIPTS ON BOTH SIDES, WHICH I WOULD THINK MAY OR MAY NOT NEED TO BE ADMITTED, DEPENDING ON HOW THAT PLAYS OUT.
00:07:37 I THINK THAT'S RIGHT.
00:07:38 AND THE EXPERT REPORTS SHOULDN'T BE ADMITTED.
00:07:40 AND THE EXPERT REPORTS SHOULDN'T BE ADMITTED.
00:07:45 Okay, we'll take it step by step.
00:07:46 I mean, deposition transcripts are often identified as exhibits under the rule, which is appropriate, but they are not typically given to the jury.
00:07:56 I would be hesitant about doing that unless somebody convinces me there's a good reason to do that.
00:08:00 That's correct, Judge.
00:08:00 I just meant in the sense that
00:08:02 neither parties to say, do you remember giving a deposition as there was a sworn statement and you're referring to such and such.
00:08:07 Right.
00:08:08 And they'll get an instruction about that along the way in terms of use of depositions.
00:08:12 It just moves things along faster and smoother.
00:08:14 And I appreciate that.
00:08:16 In terms of the expert reports, obviously there are objections that are sometimes lodged to the jury considering expert reports.
00:08:25 Sometimes the parties want both sides' expert reports.
00:08:29 we'll take that up as it comes we'll let you work through that issue if you agree it's one thing if you disagree then I'll take it up as the objections are made otherwise it sounds like the rest of your exhibits so on the plaintiff side it appears to me to be exhibits 1 through 13 and
00:09:00 I didn't mean to get sidetracked on this issue, but since we're on it, might as well take care of it.
00:09:20 All right, so one through 13, 15, and 16 are all to be admitted?
00:09:25 Yes, Your Honor.
00:09:26 And that's the agreement, Mr. Campion?
00:09:28 It is, Your Honor.
00:09:30 Thank you.
00:09:30 All right.
00:09:32 And then for...
00:09:51 The defendant's exhibits, it looks like it's just the two iPhone videos, B and C. Yes, sir.
00:09:58 Agreed, Mr. Bettinger?
00:09:59 Agreed.
00:10:00 Okay.
00:10:02 Madam Clerk, did you get all those?
00:10:03 Okay, so those are to be admitted.
00:10:05 All right.
00:10:08 Thank you for the continued spirit of cooperation.
00:10:10 I appreciate it.
00:10:13 Anything else that we need to address?
00:10:15 Let me step off just for a moment and double check and see whether we've got our last term