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Abraham Leser v. U.S. Bank National Association

December 29, 2012


The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge


Presently before the court are plaintiff/counterclaim defendant Abraham Leser's ("Leser" or "plaintiff") remaining objections to defendant/counterclaim plaintiff U.S. Bank National Association's ("USB" or "defendant") proposed trial exhibits.*fn1 (ECF No. 175, Plaintiff's Letter Objections dated 12/26/12 ("Obj.").) The court has also received and reviewed USB's response to plaintiff's objections. (ECF No. 176, Defendant's Response dated 12/27/12 ("Resp.").) For the reasons that follow, plaintiff's remaining objections to defendant's proposed exhibits are denied in part and granted in part. The court's rulings*fn2 with respect to plaintiff's remaining objections are set forth below.

I.Objection to "Documents relating to Robert Baier's writings and testimony in other matters"

Plaintiff objects to several of defendant's proposed exhibits relating to materials challenging plaintiff's expert, Robert Baier, with regard to his writings or statements in other legal matters, including testimony taken in and court orders from other matters. (Obj. at 1.) Plaintiff agrees that defendant may cross-examine Mr. Baier with these materials, but objects to defendant's ability to admit the same into evidence because they constitute "irrelevant collateral matters." (Id.) Defendant maintains that, depending on Mr. Baier's testimony, it may seek to admit some of these documents. (Resp. at 2.)

The court reserves its ruling on specific documents until Mr. Baier testifies on direct and cross-examination, but defendant's proffered documents relevant to Mr. Baier's qualifications as an expert, his adherence to any accepted standards and procedures for forensic document examiners, his prior testimony and court decisions regarding his qualifications, and documents regarding his training and knowledge as an expert are likely to be admitted. Additionally, Mr. Baier's previous statements made by him "under penalty of perjury, at a trial, hearing, or other proceeding or in a deposition," Fed. R. Evid. 801(d)(1)(A), would be admissible when presented and offered in accordance with Federal Rules of Evidence 613(b) and 801(d)(1)(A). Documents used to cross-examine Mr. Baier that are not otherwise admissible under the Federal Rules of Evidence will not be admitted into evidence.

II.Objection to "Robert Lovy orders"

Plaintiff acknowledges that four particular court orders and judgments regarding Mr. Lovy in this case, defendant's proposed exhibits D13, I13, K13, and N13, "may be used during examination of Mr. [Robert] Lovy." (Obj. at 2.) Defendant's proposed exhibit D13 is a minute entry and order dated March 2, 2011. The other three exhibits are orders and a judgment of this court finding Robert Lovy in civil contempt for his failure to comply with a deposition subpoena and imposing sanctions on him. Defendant argues that these documents are relevant to Mr. Lovy's credibility, which is at issue in this case. (Resp. at 2.)

The court rules that exhibit D13, the minute entry and order dated March 2, 2011, should not be admitted pursuant to Federal Rule of Evidence 401, because it does not make any fact of this case "more or less probable." Fed. R. Evid. 401(a). Depending on Mr. Lovy's testimony, defendant may be permitted to use the other three documents in this category, Exhibits I13, K13, and N13, however, to cross-examine Mr. Lovy. Further, although plaintiff posits that admission of the court orders and judgment "could" put the court in the position of "being a witness" (see Obj. at 2), the court does not intend to become a witness if defendant seeks to introduce them, and notes the orders and judgment are part of the record in this case.

III.Objection to Defendant's Proposed Exhibits F3 and Z4

Plaintiff objects to two proposed defense exhibits, F3 and Z4, on essentially the same grounds, and thus the court will address them together. The court will conditionally admit defendant's proposed exhibits F3, an email dated March 5, 2007, from Eli Verschleiser to defendant's representatvies, and Z4, a letter dated July 27, 2007 from Louis Lipsky, Esq. to defendant's representatives, stating that he represents plaintiff and others in the VTE loan transaction, subject to defendant's ability to satisfy the balance of Federal Rule of Evidence 801(d)(2)'s requirements at trial. In the event that defendant is not able to do so, however, defendant's proposed exhibits F3 and Z4 may be admitted for other non-hearsay grounds, including, but not limited to, showing their effect on their respective recipients, or for identification, agency and knowledge, and not for the truth of the matters asserted therein.

First, plaintiff objects to defendant's proposed introduction of an email from Eli Verschleiser to Walter Whitt (of USB) and James Freedman (counsel for USB) dated March 5, 2007, in which Mr. Verschleiser appears to transmit statements from Leser to the email's recipients. (Obj. at 2.) Plaintiff notes that Leser himself was not copied on this email, and objects that the email contains inadmissible hearsay. (Id. at 3.) Additionally, plaintiff argues that this email does not "establish the creation of an agency relationship," so as to bring it within the purview of Federal Rule of Evidence 801(d)(2), for a party admission of some kind. (Id.) Defendant contends that the email is admissible under several theories:

(i) the email is a business record of defendant, because it was sent to defendant's employees in the course of their regular business; (ii) the email is admissible as one of Leser's own statements under Fed. R. Evid. 801(d)(2) (although defendant does not specify a subsection of Rule 801(d)(2) that it believes applies); (iii) the email is admissible not for the truth of the matter asserted therein, but to show its effect on the recipients and USB's resulting belief of Leser's knowledge and involvement; and (iv) the email is relevant to whether Mr. Verschleiser was, in fact, Leser's agent, which is key to several of defendant's liability theories and defenses. (See Resp. at 3.)

Similarly, plaintiff objects that defendant's proposed exhibit Z4, a letter dated July 27, 2007 from Philadelphia-based attorney Louis Lipsky, Esq., appearing to set forth Mr. Lipsky's representation of Leser as an individual as well as the VTE Borrowers in connection to the VTE loan transaction, is also hearsay and does not constitute a party admission under Federal Rule of Evidence 801(d)(2). (Obj. at 3.) Plaintiff further asserts that it has not been established that Mr. Lipsky was either an authorized representative or employee of Leser, such that Mr. Lipsky's statements can be admitted as Leser's own, and that Leser will testify that Mr. Lipsky did not actually represent Leser individually in connection with the VTE loan transaction. (Id.) In response, defendant argues that the Lipsky opinion letter should be admitted as a business record of Mr. Lipsky's law firm, and also notes that the opinion letter is highly probative of whether Mr. Lipsky had apparent authority to act on Leser's behalf in connection with the VTE loan transaction. (Resp. at 3-4.)

As an initial matter, the court notes that although both parties generally cite to Rule 801(d)(2), neither party has specified whether these exhibits would qualify under 801(d)(2)(C), which applies to statements by a party's authorized agents with "speaking authority", or 801(d)(2)(D), which applies to statements of a party's agents made ...

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