The opinion of the court was delivered by: THOMAS PLATT, JR., Senior District Judge
In Orders of April 28 and May 26, 2004, Defendant Leo Gore was
found in contempt of October 15 and 23 and November 20, 2003
Orders of the Court. Now before the Court is a Report and
Recommendation of Magistrate Judge William D. Wall dated July 15,
2004. The Report grants Plaintiff Fox Industries, Incorporated a
yet-to-be determined sum in lost profits, and at least $37,691.73
in attorney's fees and costs, relating to the contemptuous
conduct of Gore. On July 26, 2004 Gore offered his objections to
the Report. He objects to (i) the award of lost profits on three
specified transactions; (ii) the award of attorneys fees and
costs, on the grounds that his conduct was not "willful"; and
(iii) the court appointment of a forensic computer expert in this
case.
For the following reasons, the Report is AFFIRMED and
ADOPTED as an Order of this Court. The short answer to Gore's
persistent argument that he has done nothing wrong is that he has yet to
testify to anything in answer or rebuttal to all the charges
against him.
Gore argues that Fox did not sustain any lost profits from his
conduct in the three specific instances of contempt: his
unsuccessful solicitation of the sale of grinding media to Tape
Systems, Incorporated and Bayer CropSciences, and his
unsuccessful solicitation of the purchase of grinding media from
Nissuma International, Limited. Fox lost no profits, Gore
reasons, because his solicitations were rebuffed, and because his
solicitation of Nissuma was for a sale, and not a purchase, of
grinding media. Gore's Objections at 2-3. Gore's objection is
well-taken, but it was specifically addressed in the Report
itself, which found that while "Fox is unequivocally entitled to
those lost profits," "the Court accepts Fox's claim that it
cannot now calculate those profits," but that "[i]f and when the
Plaintiff is able to calculate those damages, it should submit
its calculation to the Court." The Report at 13-14. As the Report
is accepted by this Court, Fox may proceed to offer its proofs of
lost profits.*fn1 (ii) Fees and costs
Gore objects (at length, see his Objections at 3-14) to the
award of at least $37,691.73 in attorney's fees and costs to Fox.
Gore argues that the undersigned "failed to make an explicit or
implicit finding of willfulness with respect to the three
solicitations. Gore's Objections at 4.
The Court's April 28, 2004 Order found that
Fox has shown, by overwhelming and unrebutted
evidence, that Gore violated the Orders through three
of the four alleged solicitations . . . The Court
also finds that its Orders, which were personally
served upon Gore after their entry, are clear and
unambiguous in their restraining and enjoining Gore
from disclosing or utilizing any of Fox's
confidential and proprietary information, including
customer lists and pricing information, and from
engaging in any aspect of the grinding media
business, including soliciting.
Id. at 9.
Evidence not having been presented at the April 16-21, 2004
hearing that Gore placed the phone calls in question with a gun
placed to his head, or while having an out-of-body experience,
the Court assumed that any reader would infer that the
undersigned had indeed found Gore's conduct to be willful. If
further clarification is needed, the Court states that it finds
Gore's volitional conduct, in placing sales calls to Fox's
customers from Fox's customer lists using Fox's pricing
information, after having been enjoined from doing so, to be
willful. The suggestion that willfulness could not be implied by Judge
Wall from the undersigned's Oers, and from the record
presented, is sophistry.
Gore's real objection to a finding of willfulness is his
repeated argument that the incriminating November 12, 2003 tape
of his conversation with Mr. Robert Mann is nothing but a fake
(see the April 28, 2004 Order at 8, 14-15, in which the
relevant Orders are described as merdique, yet humorous). At
the risk of repeating itself (see the Court's July 1, 2004
Order, in which the undersigned declined to disqualify himself
from this case pursuant to 28 U.S.C. § 455, at 6-7), the Court
again emphasizes that the necessary basis for any argument that
the tape is a forgery is the sworn testimony of Gore that he did
not make the statements contained therein. Unless and until Gore,
an available witness, takes the stand and denies under oath
and subject to cross-examination the accuracy of the contents
of the tape, neither his lawyer's increasingly perfervid
arguments, nor the testimony of every expert in the world, will
suffice as the foundation for a finding that the tape is an
elaborate counterfeit.
Gore's counsel, Simon Schwarz, Esq., continues in this vein to
accuse opposing counsel, Michael A. Saffer, Esq., Mr. Mann, and
Fox Industries' President Charles E. Richardson of fraud, perjury
and the subornation of perjury in connection with the entry of
the tape into evidence. Gore's Objections at 6-7, 13-15. (Mr. Schwarz, at the April 16-21, 2004 hearings, also
accused Mr. Richardson of tax evasion, see the April 28, 2004
Order at 16.) The Court repeats its warnings, issued at both the
hearings and in its Order (see id. at 16, n. 12), that Mr.
Schwarz treads on dangerous ground.
The issue before the Court is the contempt and misconduct of
Gore, and not Gore's attorney's allegations of misbehavior on the
part of Messrs. Mann, Saffer and Richardson. If Mr. Schwarz's
allegations are proven true, so be it. But if Mr. Schwarz
continues to make defamatory allegations of criminal behavior on
the part of the opposing parties and opposing counsel, and these
felonious charges are shown to be unfounded, his tactics will not
redound to his professional credit.
(iii) Forensic computer expert
Finally, Gore objects to the Court's appointment of a forensic
computer expert to examine his computer, unless, inter alia,
Mr. Schwarz is "present throughout his examination and do[es] not
let him look at privileged or ...