Opinion
17 C 8036
06-15-2021
JOSEPH MIZRACHI, Plaintiff, v. LAWRENCE B. ORDOWER, et al., Defendants
FOR THE PLAINTIFF: MAYER BROWN LLP BY: MR. LEE HOWARD RUBIN FOR THE DEFENDANTS: KAUFMAN DOLOWICH & VOLUCK, LLP BY: MS. MARY KAY MORRISSEY MR. JOHN DALTON COURT REPORTER: MS. CAROLYN R. COX, CSR, RPR, CRR, FCRR OFFICIAL COURT REPORTER
FOR THE PLAINTIFF: MAYER BROWN LLP BY: MR. LEE HOWARD RUBIN
FOR THE DEFENDANTS: KAUFMAN DOLOWICH & VOLUCK, LLP BY: MS. MARY KAY MORRISSEY MR. JOHN DALTON
COURT REPORTER: MS. CAROLYN R. COX, CSR, RPR, CRR, FCRR OFFICIAL COURT REPORTER
TRANSCRIPT OF PROCEEDINGS - PRETRIAL CONFERENCE BEFORE THE HONORABLE MATTHEW F. KENNELLY
(The following proceedings were had by video:)
THE CLERK: Case 17 C 8036, Mizrachi v. Ordower.
THE COURT: Hi. This is Judge Kennelly and we're doing this by video today. So a couple of preliminary things. There's a couple of people who are on my staff that I just need you to check, Allison and Aulani, just to make sure that your video camera is turned off because you're still showing up in the middle of my screen rather than in the bottom. If you're already turned off, you don't need to do anything.
The second thing is what I'm going to ask everybody to do is if you are not talking, please mute yourself.
And the third thing is so that we all don't have to look at like nine pictures or eight, whatever it is, what I'm going to ask is unless you are talking, unless you're addressing a particular point, I'm going to ask that you turn off your video camera. You'll still be able to see us, but we all don't necessarily need to see you.
Okay. So I assume that everybody got the email that I sent out earlier about the trial date. But let had he just kind of go over with you initially to start out with.
So earlier today the chief judge entered an order that suspends jury trials effective on the 9t h of November, and it really boils down to a couple of things. Not necessarily in this order, but, number one, given the restrictions imposed on our geographic area by the governor in terms of number of people we can have in one place at one time, which although they're not technically speaking binding on the federal government, our court has chosen to follow and adopt them. It becomes a challenge, it's not impossible, but it becomes a challenge to do jury selection and in some situations to do a trial. I think the trial itself wouldn't be a problem, but the jury selection would be challenging just in terms of not having too many people in the room.
I actually think the bigger issue is just the general sense that the trend of positive tests is kind of going in a bad direction around here and we're not completely returning to the mode that we were in in April and May but have moved a little bit in that direction just to try to minimize overall the number of people in the courthouse.
We have had just so you know and all this stuff gets posted on the website, we have had a number of people in the courthouse test positive. That's not particularly surprising obviously given what's going on and none of those people have gotten badly sick, but for any kind of a gathering, particularly one that involves a trial, there's a lot of people coming in and coming into contact with others that you don't know where they've been, who they have had contacts with.
In terms of how long this is going to last, the short answer is I don't know. The order runs it through January and I think there's a pretty good chance that there's at least some chance it will be lifted with the trend goes the opposite obviously. For right now I'll vacate the trial date and we can talk about another date after the first of the year, but I want to come back to that kind of at the end. And then talk about some of the motions that we've got here.
So first of all, does anybody have any questions about anything I have just said or anything you want to bring up? If so, just pop your video camera back on so I know you're talking and unmute yourself.
MR. RUBIN: Hi, Judge, this is Lee Rubin. I just had a question. So I saw the general order this morning issued by chief Judge Pallmeyer to a prohibition on public gatherings and I was just curious. It's just based on your description, it seems like is there another order that has been separately issued internally?
THE COURT: No. Hang on a sec. Let me just of course, I got this by email which is not the way you got it. It's conceivable they may have posted the wrong thing on the website. What I'm looking at is something entitled 7t h amended general order 20-012.
MR. RUBIN: That one is posted. Earlier, there was a 6t h amended that just spoke about -- THE COURT: No, this literally got posted within the last hour.
MR. RUBIN: Okay. That answers my question.
THE COURT: And I don't think it had been posted yet when I emailed you guys.
MR. RUBIN: Okay. Thank you. Thanks for that clarification.
So any other questions about anything I've talked about before we move on?
Okay. So I do think it's beneficial to try to go ahead and deal with as many of the motions in limine that it's reasonable to do. That will give people a little bit of a better opportunity to plan, and then we'll come back to the issue of the trial date kind of at the end.
Carolyn, if at any point you can't hear me, just waive or something because I can see you and talk louder or crank up the mic a little bit.
So on a good many of the motions in limine, I don't need to and don't intend to hear argument. I'm just going to go through and make oral rulings on them.
On a couple of them, I have questions kind of preliminary to that.
So I started with the defendant's motions in limine because they involve evidence that would be coming in in the plaintiff's case. So I don't know if the folks who might be addressing the defendant's motions in limine so you can save yourself a click, you can go ahead and put your cameras back on, and even if there's more than one person, I won't mind that way you won't have to be fishing for the mouse very fast when it goes on.
So the first defense motion in limine I had a question on which I think I know the answer to, but I wanted to be sure.
So this has to do with damages other than legal expenses relating to the Florida case. That's probably a little bit too much of a shorthand. I wanted to make sure that I understand exactly what it was that the defendant was trying to exclude and I think the answer is what you're trying to exclude is evidence about the value of the allegedly lost one-third interest in SJL.; is that right or is it something more or in addition other than that? You need to unmute yourself. Yeah. Still muted.
MS. MORRISSEY: I apologize. Ms. Morrissey. Sorry about that. I got off camera and I thought it was off mute.
So, yeah, I think I can address that issue. From my understanding there are four issues of damages that plaintiff is looking to recover, one being the legal fees, and we have no objection to the legal fees in defense of the Florida action.
The second thing, the $1.3 million that the plaintiff allegedly deposited into an account in order to become part of SJC.
The third being the one-third interest in SJC.
And the fourth being this promote fee that J A L was supposed to receive if in fact Mr. Mizrachi would have been part of SJC.
So the first one we have no objection to.
The second thing, the $1.3 million, we are objecting to as well not only speculative, but there's no way there could be a loss. That $1.3 million is in an escrow account.
THE COURT: All I'm looking for right now is identification of what you're trying to exclude. I'm not looking for argument on it.
MS. MORRISSEY: Okay.
THE COURT: It's the amount that Mr. Mizrachi deposited. What else?
MS. MORRISSEY: Then the one-third interest in SJC.
THE COURT: So what does that mean, though? When you say the one-third interest, a damage award doesn't say the one-third interest. It's money. So what are you asking me to exclude?
MS. MORRISSEY: Well, that's the question. I don't know the monetary value of his interest in the Benetti transaction.
THE COURT: Okay. And then there was a fourth thing.
MS. MORRISSEY: I think he's alleging that JAL, the company that is run by Mizrachi, was supposed to have gotten a promote fee as managing member of this N M L B and because Mizrachi was not a one-third owner, the managing member was ousted and he's claiming that he should have gotten the managing member fees.
THE COURT: Okay. I mean, not to pick a bone with you, but I guess now having said that, I am going to pick a bone with you. I could not figure that out from this motion. The motion says any other damages other than legal fees. It doesn't tell me what. I couldn't have figured any of that out. And I'm not sure the plaintiff even figured it out because the response -- some of the things you just told me about come out of complete out of left field.
MS. MORRISSEY: It's my understanding of what the plaintiff is asking for. If the plaintiff is not asking for those damages, then -- but that's my understanding of what the plaintiff is asking for based on the jury instructions and, you know, his arguments.
THE COURT: Okay. So can maybe somebody on the plaintiff's side tell me what exactly it is that the damages are that you're asking for that relate to we'll just call it Florida.
MS. BARTINE: Sure, your Honor, Abby Bartine for plaintiff.
So just to clarify the actual measure of damages that plaintiff is seeking which is not quite in line with what defendants just described, so it's the one-third interest in SJL that he lost which is looking at the profits that arose from the Brent wood transaction and the ownership in LLP. This is all set forth in our expert's report, Ken Mathieu as well. And then there is the promote which Mary Kay described and then the legal fees as well.
THE COURT: Okay. So I guess I have the same question for you that I had for Ms. Morrissey. When you say the damages are the one-third interest, that's not how damages get awarded. Damages is dollar sign with a blank after it. It's an amount of money. When you say the one-third interest, what's the amount of money that is attached to the valuation of that one-third interest?
MS. BARTINE: Sure, so I'm looking at our damages expert's report right now. He's calculated it at.
THE COURT: Which exhibit? Which exhibit on this motion is that?
MS. BARTINE: Mary Kay, was it submitted with your motion?
THE COURT: Exactly. You're kind of getting my point here. You're all kind of getting my point here, folks. So I'm -- look, I'm supposed to decide something and you guys got to give me the tools to do that.
MS. BARTINE: Well
THE COURT: So when I get a blanket motion that 9 basically says exclude everything other than this and I don't know what the everything other than this is, now I'm told it's everything that's in the expert report and that isn't part of this motion, so I mean, I'm not
MS. MORRISSEY: Well, your Honor, I'll be honest with you, it's speculative how much it's worth and what it's worth.
THE COURT: You are completely missing my point, Ms. Morrissey.
MS. MORRISSEY: No, I understand. I do understand your point. But I didn't have a dollar sign on it. The plaintiffs never -- THE COURT: But you had this expert report, right? Because you were referring to it when you were talking to me.
MS. MORRISSEY: We do.
THE COURT: Okay. So I mean, the way -- if I was drafting this motion, I would have said, okay, the plaintiff is asking for 1, 2, 3, and 4. We don't have any objection to 1, 2, 3, 4 and here's what they are, they are excluded for the following reasons. We don't have any objection to legal fees, exclude everything else because it's speculative. I don't know what the everything else is. I have the same criticism for the plaintiff. Tell me in the response what the rest of it is. I'm supposed to have the tools here in order to be able to make a decision. There is no guarantee that you get oral argument on these things. I could have just ruled on it.
MS. MORRISSEY: Your Honor, I believe, we could rectify that. I think that the responses are attached somewhere.
MR. DALTON: Yes.
THE COURT: On some other motion probably. It's probably on the motion to bar the plaintiff's expert's report.
MS. MORRISSEY: Which are all attached to our memorandum, though.
MR. DALTON: It's Exhibit 5 to our motions in limine. Excuse me, Exhibit 6.
THE COURT: Exhibit 5 is a deposition.
MR. DALTON: Right, Exhibit 6. I apologize.
THE COURT: Is it basically the little chart that's over on page 7?
MS. BARTINE: Yes, your Honor.
THE COURT: One-third ownership shares 6 million plus managing member payment 3 million plus, legal fees and expenses 1.5 million plus.
MS. BARTINE: As of the date of this report which has been updated on the legal fees, but they are not disputing that on this motion. But these are the relevant numbers in the categories.
THE COURT: Fine. Now at least I know what we're talking about.
So the key focus of the response by the plaintiff is I already ruled on this in the summary judgment motion, so what's the response by the defendant to that?
MS. MORRISSEY: That I didn't see any ruling in the summary judgment motion that these were not speculative damages, and I believe that what the plaintiff
THE COURT: Why isn't -- okay. So if I didn't that was probably because nobody argued it. So there's a difference between a motion for summary judgment and a motion in limine. The motion in limine says that something is not admissible under the rules of evidence. A motion for summary judgment says cut this part of the case out. This kind of sounds like a mini motion for summary judgment.
MS. MORRISSEY: I disagree. I think it's cut this out because these damages are completely speculative, they're not concrete, they're not -- I mean, we don't know what's going to happen in the Florida case, we don't know if there's going to be any kind of a ruling, you know, that Mr. Mizrachi owns one-third or doesn't own one-third. There are 33 million dollars setup in escrow right now. If in fact a jury was to award one-third of the interest in SJL to plaintiff and then in the Florida case, you know, there's another party in the Florida case. Mr. Holtzman is in the Florida case. He has no ability to say, no, jury, you can't give this guy a third of the interest because I'm telling you he shouldn't get a third of the interest. And so who knows what's going to happen in the Florida case. It's completely speculative. They're future damages are not yet determined.
THE COURT: Ms. Morrissey, quite honestly, you've made my point. My point is that this isn't an evidentiary motion. It's a motion that basically says there's part of the case that shouldn't be going forward. That is a summary judgment motion. The time for making summary judgment motions came and went. You can make a Rule 50 motion at the close of the plaintiff's case or at any other appropriate point as Rule 50 A says, but this is the motion that you filed here, and I'm going to say this about some of the other ones too, it's not really a motion in limine because it doesn't argue about admissibility under the rules of evidence. It argues about legal sufficiency. Those are two different things.
MS. MORRISSEY: Your Honor, isn't speculative damages and whether damages are concrete.
THE COURT: Why wasn't this argument made in the summary judgment motion? Explain that to me.
MS. MORRISSEY: I don't know. I was not part of the case at the time.
THE COURT: Yeah, but that's -- you know that's not a good answer.
MS. MORRISSEY: No, I don't know why.
THE COURT: I got other people on the phone, other people on the call who were. Maybe since you just threw them under the truck, one of them can tell me.
MR. DALTON: That would be me. That would be me, your Honor.
THE COURT: Mr. Dalton.
MR. DALTON: John Dalton. It was argued in our motions to stay which were denied by your Honor on two occasions.
MS. BARTINE: This precise argument on
THE COURT: You're on the plaintiff's side. I didn't ask you a question Ms. Bartine, so just cool it for a second. It wasn't made in the motion for summary judgment, it was denied in the motion to stay.
It's denied without prejudice. It's not a motion in limine. It's a motion for summary judgment. You can make a request under Rule 50 at some appropriate point during the trial.
Moving onto No. 2 which asks me to exclude evidence regarding disgorgement or or unjust enrichment. Again, so first of all, I agree with the plaintiff that there's no separate claim for unjust enrichment, nor does there need to be under the rules of civil procedure since they've existed. You make claims and Rule 54, I think it's Rule 54, says you're entitled to whatever relief you're entitled to. This particular motion is, again, a motion that basically says there isn't enough evidence to get this which is not a motion in limine. It's denied without prejudice for that reason, and with or without prejudice, it's without prejudice to filing a Rule 50 motion.
All right. Now we get to something that is -- a couple of things that are actually, at least one or two that are actually motions in limine. And that has to do with the representation -- evidence regarding the representation by Mr. Ordower, the alleged representation of Mr. Ordower of entities connected with the plaintiff. And it's basically a 403 argument. I don't need to hear further argument on this. I am not persuaded that the potential for confusion or waste of time substantially outweighs the probative value which is required for Rule 403. This evidence does have some relevance in terms of plaintiff's understanding about whether he was being represented by Mr. Ordower in the transaction in question, so that one is denied.
On No. 4, plaintiff's legal fees in the Delaware, Florida, and California cases. So this was clearly ruled on in the motion for summary judgment ruling. So on page 28 for the motion for summary judgment decision which is docket number 208, I ruled that the plaintiff cannot recover legal fees related to it's deal where and California cases but is entitled to request legal fees, obviously up to the jury to decide it, relate the to the Florida case. So in response to this motion, the plaintiff says, well, wait a second, I ought to be able to recover legal fees relating to the California and Delaware cases insofar as they relate to Mr. Holtzman. My answer to that is this was ruled on in summary judgment, I ruled you're not entitled to recover the legal fees. If there was going to be any argument about parsing them out as between the fees and a particular case that relate to one defendant as to another defendant, that argument should have been made then. It wasn't. It's too late to make it now. So the ruling that I made on the summary judgment motion is the ruling that will govern the trial.
No. 5 is
MR. RUBIN: This is Lee Rubin, could I just ask a question about that?
THE COURT: Yep.
MR. RUBIN: I recall from your order that you did indicate in your order that you said that the defendant -- it still leaves the question open as to fees related to Mr. Holtzman, and so we certainly
THE COURT: I'm just going to quote -- I'm going to quote myself and I'm looking at it here. In the cases in California and Delaware, Mizrachi sued Ordower and Holtzman leaving out a short sentence. Both cases as indicated involve conduct at issue at least to some degree in this case, but although both cases are ongoing, even if Mizrachi is successful in those suits, he would not be entitled to recover from Ordower attorneys' fees he incurred for those suits. The Court concludes that Mizrachi is not entitled to attorneys' fees incurred to sue Ordower in other lawsuits pertaining to the issues involved in this case.
So the answer -- if somebody was going to make an argument, if the question was to preclude all of that, okay, you should pars it out between what part of the legal fees that I paid for this case relate to Ordower, what part relate to Holtzman, as I just said which I'm going to repeat the second to last time, that argument should have been made then, it's forfeited.
MR. RUBIN: I'm just saying we absolutely made the argument. We made it
THE COURT: Then where was the motion to reconsider? Then
MR. RUBIN: We just didn't read your order that way. We understood you were leaving open -- there's another sentence in there that we
THE COURT: Thanks, Mr. Rubin, I ruled.
No. 5, fiduciary duty claim. This is clearly a summary judgment motion that basically asks me to bar a claim. It's not an appropriate motion in limine. It's denied. Having said that I ruled on the summary judgment motion, page 30, that the two claims are essentially coextensive in terms of the source of the duty, but this can be dealt with at the Rule 50 stage, so as a motion in limine it's denied. The expert stuff we're going to come back to.
Number 6 is Mr. Holtzman's Pennsylvania complaint against Mr. Ordower. The plaintiff's argument in response to this motion about the relevance of this in my view is quite strained, that's at page 29 of the response, and I do think that there is some significant possibility of confusion, and so I think I'm granting motion number 6 under Rule 403 because I think the likelihood of confusion significantly outweighs whatever probative value Mr. Holtzman's Pennsylvania lawsuit against Mr. Ordower might have.
MR. RUBIN: Your Honor, your Honor.
THE COURT: Mr. Rubin, just make a list and we will come back at the end.
MR. RUBIN: Okay, okay.
THE COURT: On the experts, we're going to come back to those later.
I'm flipping over to the plaintiff's motions, and I'm moving ahead to the last three which is 4, 5, and 6.
No. 4 has to do with evidence of Mr. Mizrachi's wealth and his real estate and transactional experience. The ruling on that is that information about his wealth is not relevant and unfairly prejudicial in a way that would far outweigh its probative value so that is excluded.
Evidence about his experience in real estate transactions is absolutely relevant. And that's not excluded. And it's not unfairly prejudicial. So that's a split ruling on that.
No. 5, evidence regarding Mr. Ordower's health. So in the response, the defense argues I would say rather vaguely that issues about Mr. Ordower's health might be relevant regarding it's the accuracy of deposition testimony that might be used to impeach him at trial. That is way too vague of an argument for me to address. In terms of evidence about his health, I'm not persuaded that it's relevant. I also think it would create an undo risk of sympathy that would outweigh its probative value, so I'm excluding it. However, if something comes up during the examination of Mr. Ordower that the defense thinks it needs to be able to explain in this way, you're going to have to raise it with me in a sidebar outside the jury's presence and I'll consider it then.
Number 6 is absence -- evidence -- motion to exclude evidence that there weren't any ARDC proceedings involving Mr. Ordower. That evidence is excluded. It's essentially evidence of good character which is inadmissible under Rule 404 A and even if it was, it's not relevant and it's unfairly prejudicial. I'd exclude it on that basis.
So that leaves the plaintiff's -- the defendant's motions regarding the plaintiff's experts which I think is number 7 on the defense side. The plaintiff's motions regarding the defense experts, which is number 1 on the plaintiff's side. It also leaves No. 2 on the plaintiff's side and number 3. And I don't think we're really going to argue about those too much today.
So here's my basic question on the motions relating to the experts, and it pretty much comes a time in every pretrial conference in a civil case where each side kind of runs into itself. So each side has argued that the other side's expert should not be able to testify that an attorney-client relationship was or was not formed. So the plaintiff says that the defendants' expert shouldn't be able to testify about that and the defendant says that the plaintiff's expert shouldn't be able to testify about that, and you both basically make the argument on the same basis when you're responding, you basically say exactly the opposite. So you want to pick a side? I'm saying that only half facetiously.
MR. RUBIN: Your Honor, I'll go first. Yeah, the side that we pick is that all testimony for both experts should be excluded on the existence of attorney client relationship. It's a question of fact for the jury, the Court determined that when it ruled on summary judgment that there was a factual dispute. There are many decisions, including from this district, that have concluded that expert testimony on agency, attorney-client relationship is not the subject, 20 proper subject of expert testimony. So as to that category, we think that both experts, including -- and that includes ours, both experts should be excluded. We do
THE COURT: On that issue, not on the other issues they're talking about.
MR. RUBIN: On that issue. On that issue of whether or not an attorney-client relationship exists. The experts have nothing to add that would be beyond the Ken of the jury of determining whether that relationship exists.
THE COURT: Who wants to address this on the defense side?
MR. DALTON: Me, your Honor, John Dalton.
I'm torn because I agree with that what's good for the goose is good for the gander and we should agree to take one side or the other. The issue I have is there has to be some context for our experts to testify as to, for example, the standard to determine what -- the standards to determine whether an attorney-client relationship exists. Now, the Court may consider that to be in its purview a question of law strictly, and if that's the case, then I would agree with Mr. Rubin.
THE COURT: Well, okay. So I mean, it seems to me that I'm -- one way or another, whether there's experts talking about this or not, I'm going to have to instruct the jury on how they go about deciding -- how they go about deciding whether there was an attorney-client relationship or not. That's kind of a foregone conclusion, am I right?
MR. DALTON: Yes.
MR. RUBIN: And we submitted competing jury instructions.
THE COURT: I haven't looked at the instructions, but I assumed you would. Do you agree with that, Mr. Dalton?
MR. DALTON: Yes.
THE COURT: So I looked at both of the opinions on this, and I mean, they basically -- what each one of them does more or less is it basically takes a set of -- a set of evidence and maybe some assumptions and then draws a conclusion about whether there was an attorney-client relationship or not. And, you know, each side kind of argues that the other side's expert is doing one of two or both of two things, one would be making either express or implicit credibility determinations. Like I'm going to believe this evidence, I'm not going to believe that evidence; here's why. And number two, well, actually three things. Number two would be ignoring certain evidence. No. 3 is weighing evidence.
Now, the weighing part of that, I mean I don't think is necessarily by itself a problem. But this just strikes me as an area in which the existence of what amounts to a contract is not something on which expert testimony would benefit the jury beyond what is in their ordinary understanding and what they're going to get from the jury instructions. Essentially what's happening on this particular point is that you've got two competing experts kind of giving like little mini closing arguments. I'm not saying that pejoratively. That's what most experts do. Giving mini closing arguments saying here's all the facts and this adds up to this and the other side's expert says, well, here's all the facts and that adds up to the opposite and I just don't think that that contributes anything that an expert can appropriately contribute beyond what the jury can get on its own and what they'll get from the instructions, the evidence and the argument. So I'm going to exclude both experts. Mr. Dalton.
MR. DALTON: Excuse me. As you were talking, it actually occurred to me, so if we exclude this from both sides, then to testify about the standard of care, which both sides presumably I think -- I would presume you would allow that.
THE COURT: Yes.
MR. DALTON: They're both going to have to assume an attorney-client relationship and I think that could be prejudicial to my client because unless there's some limiting
THE COURT: So that's something that experts normally do. So, for example, a defense damages expert routinely says, I'm assuming that there's liability. I'm not saying that there's liability. I'm assuming there's liability. They don't successfully say, well, I shouldn't have to even do that because that's prejudicial to me. I mean, we are talking about smart people here both the lawyers and the experts who are also lawyers. And my sense is that they'll be able to --you'll be able to hedge it in the questioning and in the answering in a way that somebody isn't saying, I'm not saying that there is an attorney-client relationship. I'm assuming that there is an attorney-client relationship, and if there is an attorney-client relationship, here's what the duties are and here's why they breached. The defense expert is going to be doing that anyway. I can imagine you making a strategic decision at trial kind of not present the expert on the second point, but presumably you would be and they're going to be doing it anyway. Even if I were to allow them to testify there isn't a relationship, they're not going to stop that testimony. They're going to go on to talk about it.
On the -- so that takes care of -- I want to make sure I got it right. That takes care of part of -- hang on a second. I got to just turn back to the motions here. Bear with me a moment. So that takes care of part of the plaintiff's motion regarding Flaherty, f-l-a-h-e-r-t-y-. The plaintiff also makes an argument about Flaherty relating to duty and things like that. And it takes care of on the defense side, I think it takes care of part of the defense motion relating to Hirshon. I want to make sure that I got that right. Wait a sec. I'm just looking back at those things here.
No, okay. So the argument that the defendant makes on Hirshon -- yeah, let's make an argument about the other side's expert on the duty and breach of the duty questions too. And I'll just tell you that my conclusion on that is that these are all great points for cross-examination but not for excluding evidence. So the bottom line is both experts are excluded on the question of existence of relationship and both are allowed to testify on the question of nature of the duty and breach of the duty.
Okay. So then we're to the damages people, which on the plaintiff's side is Mr. Mathieu, m-a-t-h-i-e-u, and on the defense side is McGovern. And this was actually the one where I did want to hear a little bit more argument. So I think what I'd like to do is since I've got on each one of them I've got a motion to exclude and a response to the motion, what I'd like is on each one of these people if the moving party can kindly give me an oral reply in support of your request to exclude the other side's damages person. So I don't care who goes first. Why don't we start with the defendants' motion to exclude the plaintiff's expert Mathieu. So whoever is going to deal with that on the defense side.
MR. RUBIN: So your Honor, you want me to answer that motion?
THE COURT: Yeah, basically, if you had been given a chance to file a written we ply, what would it have been.
MR. RUBIN: I see. I see. So, your Honor, essentially I think that motion, if you were to reduce it to its essence is that he didn't offer any kind of methodology, but it's just purely -- it's an accounting valuation analysis. Essentially all is the cash through NLMP which can't be done without somebody doing the calculation, looking at the tax returns, and conducting the analysis for purposes of these various buckets of damages, what the third one-third interest equals and the promote value, and offers that testimony and then he later he issues a supplemental report that would be for later consideration about disgorgement. So this is I think very much mainstream heart land kind of expert testimony. Mr. Mathieu was not offering any opinion about --specific opinion about proximate cause other than to say, this was my understanding of the malpractice claim is that but for the malpractice, he would have earned these proceeds from this investment. But otherwise, as you can see from the report now that we've referred to it in Exhibit 6 of the defendant's, otherwise a straightforward financial analysis that essentially just tries to explain to the jury where the sources -- where the funds come from and how we reached the conclusion that we did that this was the amount of investment, that this was the amount of the promote and we had to do the work of the attorneys' fees. Obviously, we'll be amending that subject to the Court's decision, but looking at the invoices, calculating those amounts that are in or out. So in that respect, it's very straightforward and there's no --there's no sort of magic formula, there's no algorithm, he's not a scientist that is offering some scientific evidence about whether the DNA geno matches, it's a financial evaluation analysis, and I think this is very typical of a damages assessment.
THE COURT: Does anybody on the defense side want to make any comments in response to that?
MR. DALTON: Yeah, I will just comment that it misses the mark in response to our primary gripe, if you will, of his opinion which is that his conclusion that Mr. Mizrachi individually incurred these lost profits is essentially baseless. He relies on one conversation with the plaintiff and the plaintiffs -- the plaintiff's allegations are inconsistent at best as to what he owns as far as JAL and how he would have -- and, you know, with respect to the attorneys' fees that he's claiming are a loss for the plaintiff. Those were paid through L.L.C.s and not directly by plaintiff.
THE COURT: So can I ask you a question about that.
MR. DALTON: Yes.
THE COURT: So going back to one of the earlier points you made there, so you said that he relied on a conversation with the plaintiff. So is the issue that it's not appropriate for him to do that or is the issue that the statement of the plaintiff isn't enough to support the opinion or is it both or is it something different?
MR. DALTON: Well, that conversation is certainly not part of the record. You know, his testimony in deposition, the allegations in the complaint, you know, all of the emails, and if in fact the legal invoices are allowed in the record, those are all in the record, but that conversation -- those conversations that he had with the Mizrachis are not in the record.
THE COURT: What do you understand -- I mean, just in substance, kind of in a nutshell, what do you understand the conversations that he's relying on to be?
MR. DALTON: Mr. Mizrachi told him that he owned part of -- he owned 50.5 percent of JAL.
THE COURT: Okay.
MR. DALTON: But we don't know what else Mr. Mizrachi told him about that because it's not part of the record.
THE COURT: Was he asked about this in his deposition, he being the expert?
MR. DALTON: Oh, yeah.
THE COURT: What did he say?
MR. DALTON: He didn't know how much -- what percentage Mr. Mizrachi owned of any of the companies, and JAL, he doesn't know how much of the -- through the affiliated entities that Mr. Mizrachi owned JAL in.
THE COURT: But did he say in the deposition, I don't know, I'm just relying on what Mr. Mizrachi told me?
MR. DALTON: Yes, essentially, yeah.
THE COURT: I got to tell you, I would pay to cross-examine that guy. I'm not sure why that's bad for you because, basically, what you have there -- and I understand that's not necessarily the issue in terms of the rules of evidence, but basically what you have there is he's relying --it's based entirely on the credibility of something that you believe that you can completely under cut. I don't know. I mean, when I was trying cases for a living, you know, on the other side, I may be had a different philosophy. I wouldn't be moving to exclude it. But whatever.
Mr. Rubin, let me ask you a question. On the topic that Mr. Dalton was just addressing right now, what is Mr. Mathieu, does he pronounce it like it's English or French?
MR. RUBIN: Yeah, he pronounces it like he's now in Chicago, Mathieu.
THE COURT: It's not like Goethe street on the north side.
MR. RUBIN: Mathieu, yeah.
THE COURT: /TKPWURT is pronounced /TKPWO*ET /AOE in Chicago.
MR. RUBIN: Right.
THE COURT: So what does he say about where he gets the information -- what's the source of the information? Imbedded within my question, I'm basically asking you: Is he concluding this or is he taking it as an assumption or something between or what?
MR. RUBIN: Essentially, your Honor, he's taking this as this is what I'm assuming to be the case based upon, I've been advised by the plaintiff that he has a 50.5 percent interest in this entity that was entitled to the promote. I am taking that as an assumption based on that. And we even offered Mr. Dalton cross-examination in our opposition that, you know, he could ask Mr. Mathieu, if it turns out in this trial that that's not true that we established -- or that there's insufficient evidence to show that he has a 50.5 percent ownership interest, the damages calculation is what is owed Mr. Mizrachi is not correct. To your point, your Honor, that's customary expert testimony. He's not being offered as a corporate expert, here's the underlying corporate structure and here's who has the ownership interest and the benefit and the interest. We're saying this argument runs through many of their -- this is a theme.
THE COURT: You can pause right there. You've answered my point.
Let's flip over now and talk about the motion to exclude the defense damages expert. So I guess, again, this would be -- yeah, whoever wants to talk about that. McGovern I guess is the name.
MR. DALTON: Yeah, Mr. McGovern.
With regard to -- I don't think they say -- I don't think there's much more to say in response to their motion other than what we already provided in our brief in response. You know, they go back to Mr. McGovern makes conclusions based on he considers the evidence and makes evidentiary conclusions which is not only appropriate but required in order to make certain assumptions about what the damages would be.
THE COURT: Basically, it's the same thing. You're not offering him to kind of weigh the evidence on liability or anything like that. He's basically saying, okay, assuming this set of facts, here's
MR. DALTON: Yes. For example, he says if there's --if Mizrachi backed out of the deal, there's no -- there are no damages. If he didn't, then this is what I think the damages should be, not 9 million but 7 million. The bottom line are his two opinions.
THE COURT: Okay. All right. Mr. Rubin, or whoever wants to address this on the plaintiff's side.
MR. RUBIN: Your Honor, if what Mr. Dalton said were true, then we probably wouldn't have had the same objection, but his entire report is really not a damages -- it's not a damages opinion. It's a proximate cause opinion, that he doesn't have any foundation to offer. So in this deposition transcript, he says, I do form the opinion that the voicemail is evidence of Mr. Mizrachi dropping out of the deal and his whole testimony essentially is it's my opinion that Mr. Mizrachi to the extent that there was loss here, it's Mr. Mizrachi's fault because he left this voicemail in which he withdrew from the deal. That's one of the central facts of the case.
THE COURT: What if I were to say, okay, fair enough, he can't -- he can't, it's not an appropriate thing for a damages expert or any expert to do to say basically the evidence proves the following, and so what I tell him you can't reach a conclusion about what the evidence shows about whether Mr. Mizrachi did or didn't withdraw from the deal, but I'd allow him to say, okay, what are your assumptions. One of my assumptions is Mr. Mizrachi withdrew from the deal. If it were couched that way, would there still be a problem with his opinion?
MR. RUBIN: Well, I just don't know what's left of his opinion if you say that because as far as we could tell from the report, all he's doing is saying there was this voicemail, it was left by Mizrachi, it was understood, it was reasonably understood as a withdrawal from the transaction, and therefore, there are no damages. That's the guts of his opinion.
And then he goes onto rule on other things that this Court has -- to opine on other things that this Court has already addressed like that the damages are too speculative, which, as you said, was a summary judgment issue and now is a Rule 50 issue, but they're just making it because of the Florida lawsuit and he opines that Mizrachi can't recover certain damages because of double recovery. So I don't think it would be appropriate to have an expert get on the stand and basically recite these principles of whether this renders it too speculative. The Court has already indicated if they want to renew at the Rule 50 stage, they can. I don't know what role an expert would have in opining on these legal principles about double recovery is available, might occur, so therefore, you shouldn't award damages. And there's a Florida lawsuit that's pending, and that could prevent you from awarding damages because it's too speculative. These are matters that are not within the purview of expert testimony. These are the Court's decisions, not an expert. The jury would be utterly confused by this.
THE COURT: Mr. Dalton, what would you like to say in response to what Mr. Rubin has just said?
MR. DALTON: Well, specifically, with regard to his opinions 4 and 5, 4 is an analysis of the loss assuming that my clients are liable, and he's saying instead of $9 million, which is what Mr. Mathieu says, it's 6.9 to 7.2 million. That is certainly within the purview of a damages expert.
With regard to opinion 5, it's my understanding from my discussions with Mr. Rubin that he expects Mr. Mathieu to provide the Court if there is in fact liability, a finding of liability and then later argument about disgorgement that he's going to have Mr. Mathieu testify to the Court as to the value of that -- of the claimed compensation that Mr. Ordower received, and Mr. McGovern would testify that that claim is a lesser amount than what Mr. Mathieu testified to. That's it.
THE COURT: All right. On the motions relating to the damages experts, I'm going to take them under advisement because now that I heard this, I want to reread the reports and maybe parts of the deposition testimony and make on a decision on that later.
The other one I wanted to talk about over -- I skipped over this earlier. Plaintiff's motion number 3 basically asks to exclude arguments about contributory negligence, and basically the contention is, well, it wasn't pled as an affirmative defense. And then in the response, I'm looking at page 17, the defense quotes, the amended affirmative defense 10 which the first paragraph of which says without admitting the plaintiff suffered damages and the defendants were or should be liable for any such damages, whatever loss injury or damages plaintiff suffered by reason thereof was proximately caused in whole or in part or contributed to by the negligence, fault, breach and or intentional misconduct of others including plaintiff.
So why isn't that a sufficient pleading of an affirmative defense?
MR. RUBIN: Well, your Honor, if you recall this was repled after you had
THE COURT: I don't recall. That's why I'm asking.
MR. RUBIN: Okay. Okay. I know you have a few other cases, so apologies.
THE COURT: One or two.
MR. RUBIN: So going back, these affirmative defenses were pled as many lawyers do, and I'm sure I'm guilty of it as well, of just boilerplate affirmative defenses. I believe just that first sentence. And then the Court granted our motion to strike saying these are not sufficient for pleading purposes. You need to come back and allege something that would factually support these allegations.
So it does refer to plaintiff in the first sentence, but then the additional language, all that was added was that plaintiff didn't retain defendant, plaintiff instead retained other lawyers. And this affirmative defense is captioned comparative fault. So upon that pleading, we didn't necessarily have a basis to move again to strike or do anything else. That pleading for purposes of that pleading in terms of other lawyers, it was pled. But now plaintiff has indicated it wants to offer contributory negligence of the plaintiff, his negligence, not the other lawyer's negligence, but his negligence. And that affirmative defense doesn't in any way explicitly, implicitly, otherwise, raise any failure or breach of any duty of care by Mr. Mizrachi. That's what would have to be established.
THE COURT: So putting aside whether the pleading is adequate, can somebody on the defense side just kind of sketch out for me what the negligence -- the contributory negligence regarding the defendant is.
MS. MORRISSEY: Sure, I think quite specifically, the affirmative defense itself says comparative fault including plaintiff. So it's set out there that plaintiff can, you know
THE COURT: But what's it that you're contending he did.
MS. MORRISSEY: Initially what we contended, one of the things we contended on the -- in one of the paragraphs here was that plaintiff, you know, is alleged to have an attorney-client relationship with the defendants, yet he never retained -- he's a sophisticated, experienced businessman and he never specifically retained the defendant to represent him in this case. There is no evidence, there's no testimony that he did, there's no testimony that he said, hey, are you representing me in this or confirming that he represented. We think that that's negligence in and of itself for a sophisticated businessman not to confirm that an attorney is representing him in a huge, complex commercial deal.
THE COURT: Let me interrupt you for a second. To me that sounds more like an argument that he didn't retain him than an argument that if he did retain him he was negligent. In other words, if the jury hearing that as well as the other evidence concludes that he did retain him, why would it be appropriate to argue that he was -- that his damages should be reduced or denied because he didn't get it in writing?
MS. MORRISSEY: Well, I mean, you know, it's his fault. There is fault on behalf of the plaintiff for not specifically retaining, you know, doing what needed to be done to retain him. But also, your Honor, I think initially when the affirmative defense was pled which was probably years ago, as long as it's plausible on its face and that discovery can lead to some other facts, then I think we can plead those other facts. And some of those other facts are that, you know, plaintiff says he's part of this deal, wants to be part of this deal, but yet he makes a phone call and he says, I'm out of the deal. Well, again, would a sophisticated, experienced businessman say, I want out of the deal unless you're going to do it on my terms the day before the deal is to close, you know, we don't think that that's a reasonable thing to do. We think that that's negligence on behalf of --and we think because of that, that's why plaintiff has damages, because he backed out of the deal. So that the damages are not caused by the defendant or any negligence by the defendants but by the plaintiff in this case.
THE COURT: Just an observation, so to me, again, that sounds more like a proximate cause argument and less like a negligence argument. I am not going to preclude the defense right now. I just want to get a sense of what its current --aside from not retaining him and aside from this phone call where Mr. Mizrachi allegedly says I don't want to be involved, are there other things that you're arguing amount to negligence on his part, in other words?
MS. MORRISSEY: You know, I think at this point, John, unless you want to chime in here, I think that's about it.
MR. DALTON: Nothing further.
THE COURT: Okay. Here's what that sounds like to me. What that sounds like to me is evidence that's all going to come in any way, and then there's going to be a question about whether a particular label -- so my inclination on this is this is really an issue about what the jury gets instructed on at the end of the case and what people are allowed to argue in their closing argument, not whether evidence should come in or not. And so that's where it should be left. It doesn't --nobody's identified for me any particular piece of evidence as opposed to argument that a piece of admissibility would turn on whether I granted or denied this motion. I am going to deny it subject to making a Rule 50 motion at the appropriate time.
I get what you're saying, Mr. Rubin, that the paragraphs that were added on here all talk about his retention of other people and so on, but you can't -- I don't think I can write out of the affirmative defense those last two words of paragraph one, comma, including plaintiff, and even though there isn't anymore flesh put on that in the later paragraphs, it seems to me that the defense was sufficient to tee up the issue, so I'm not inclined to preclude it at this point in time and we'll address it again when we get to that part of the case.
MR. RUBIN: Your Honor, the only thing I would add is I know you had mentioned that you give jury instructions at the beginning too. So to the extent -- we're certainly --just to be clear, we are certainly not arguing that as a matter of proximate cause, we're not seeking to preclude the defendant from arguing anything they want about the voicemail.
THE COURT: Right.
MR. RUBIN: But it is the case that there is absolutely no evidence, they've offered no expert testimony, no other evidence that there is even a governing duty of care, that there would be a duty of care that would govern.
THE COURT: Can I short circuit this. Everybody will have a chance to address later what should be in the preliminary instructions and what shouldn't, and, again, just so you know the jury doesn't get them physically. They just see them. We'll worry about that later.
What I still have on the undecided. Is the damages experts and then I think it's plaintiff's motion No. 2 which I want to look at a little bit further and I didn't get a chance to finish on that. We'll deal with those in due course.
Let's talk about the trial date.
MR. RUBIN: I put down a little list of two things on motions in limine.
THE COURT: Yes.
MR. RUBIN: One, on the -- on our motion in limine regarding defendant's expert Flaherty, we also moved, we don't have any dispute that each side can testify as to whether the professional standards duty of care were breached. But Mr. Flaherty also has a fairly lengthy section about proximate cause.
THE COURT: Proximate cause.
MR. RUBIN: The wrongful act doctrine.
THE COURT: That's still on the table.
MR. RUBIN: So we would -- we believe those are all.
THE COURT: I've got the briefs on that. I don't need more.
MR. RUBIN: Okay. Okay. Secondly, your Honor, briefly on the issue of the Pennsylvania suit, we just discovered two days ago -- so I understand your Honor's comments about.
THE COURT: Yeah.
MR. RUBIN: Sort of following the dots on our argument. However, the dots have been filled in considerably because it turns out unbeknownst to us there is a lawsuit that has been filed by Mr. Holtzman against Mr. Mizrachi in Chicago in Cook County Circuit Court.
THE COURT: Say again, Mr. Mizrachi?
MR. RUBIN: Excuse me, I misspoke. Mr. Ordower.
THE COURT: Alleging what?
MR. RUBIN: Alleging malpractice, alleging
THE COURT: So your argument on the other thing was the fact that the lawsuit got filed and then withdrew showed that they were in cahoots, basically, and one is the master and the other is the servant or something like that. So what's the argument now?
MR. RUBIN: Well, because it had been dismissed, but now it specifically says this lawsuit -- I just want to leave it open for later, your Honor. I don't want you to think I was sitting on it, this lawsuit specifically says, one of the reasons that Mr. Ordower committed malpractice and breached his duty to me was because he was negotiating with Mr. Mizrachi in a settlement and that was in breach of his duty to me and that will harm me and that will hurt me.
THE COURT: Okay. And explain to me what fact that makes more or less likely that's pertinent to our case here.
MR. RUBIN: Well, it makes -- when you're evaluating Mr. Holtzman's testimony and Mr. Ordower's and you know and the entirety of our case is the two of them conspired that basically Mr. Ordower chose Mr. Hots man's interest over Mr. Mizrachi's on those fateful days in late September. And you know that he has a sort of Damocles over Mr. Ordower's head in which he's filed suit against him and he said, I filed -- and he testified, I filed this original suit because I heard you were negotiating with my enemy.
THE COURT: Pause for a second. I'm waiting for the therefore. So let's get to the therefore.
MR. RUBIN: And you were negotiating with my enemy and I filed -- and therefore, I filed this suit against you. And now he filed -- the same suit has been filed but in Illinois. It's a threat. It's a specter against him that if he gets out of line with Mr. Holtzman, if he doesn't do as Mr. Holtzman wishes, and that's our case, that he favored Mr. Holtzman over Mr. Mizrachi, if he doesn't do what 42 Mr. Holtzman wishes in terms of supporting Mr. Holtzman's position that he owns 50 percent of this and Mr. Mizrachi pulled out, look out, look what's coming
THE COURT: That is certainly grounds
THE COURT: I think I understand it on some level. So basically what you're telling me is that -- is that which is different from the other argument before because the argument before was he dismissed the lawsuit and that proved that they were in cahoots. Now the argument is he's got this leverage over Mr. Ordower which essentially requires Mr. Ordower to support Mr. Holtzman's view of the world and Mr. Holtzman's view of the world happens to actually be about the same position of Mr. Mizrachi which is Mizrachi isn't entitled to any part of the L.L.C., so you want to be able to put in that isn't it a fact Mr. Ordower that you've been sued by Mr. Holtzman, what would you need to put in beyond just the fact that he had been sued? Assuming you get to put that in.
MR. RUBIN: Yeah, that's what we would put in. We would put in, ask the Court to take judicial notice and put it in on cross-examination, isn't it a fact that you have been sued here, the allegations, it specifically references
THE COURT: So see, you just went wait beyond what I said. You want to be able to put in the complaint and the lawsuit, which includes discussion about settlement negotiations in this case which is completely improper under rule 4 whatever it is, 408.
MR. RUBIN: Well, there were settlement discussions -- they were alleged settlement discussions between us and Mr. Ordower. They weren't his. He was saying, I filed this suit. Once I heard that you might be entering into settlement discussions and might be settling this case with my enemy, Mr. Mizrachi, I sued you. And now I've sued you -- now I've just can dismissed but sued you again. Look, I'm prepared -- I just need the fact that the lawsuit exists, the lawsuit is basically making the allegation that you are a defendant in this suit, Mr. Holtzman has filed it against you, and he's alleging you breached your duty to him in part because you were potentially trying to settle with Mr. Mizrachi.
THE COURT: Yeah, I'm just not persuaded by that at all. To me the relevance argument is still quite strained. I'm not going to say it approaches a conspiracy theory, but it does. I guess I just said it. Putting that aside, I think it's a strained argument. We got enough lawsuits in this case that are directly at issue without putting in one more on, you know, some theory that there's leverage that one person has over another person. And the fact of the matter is that Mr. Ordower's position in this case was his position in this case before the reinstitution of this suit anyway. So I just don't think it has any probative value at all. If it does, it's greatly outweighed by the potential for jury confusion, so it's not dealt with.
I want to talk about the trial date.
MS. MORRISSEY: Your Honor, can I bring up one other issue that I -- we kind
THE COURT: Yes, you can bring up one other issue.
MS. MORRISSEY: Okay.
THE COURT: Pick it well.
MS. MORRISSEY: Okay. It has to do with the other fees in the other lawsuits, and your Honor had already made a determination that California and Delaware legal fees, you had already ruled on that. We had
THE COURT: In your favor.
MS. MORRISSEY: In our favor. We had already said that we have no objection to the -- and your Honor had ruled that the defense of the Florida case was also -- was allowed, and that's going to be in. The question becomes, first of all, the counterclaim, but more importantly the third party complaint in the Florida case that is filed by JAL. It's not even filed bill the plaintiff. So it cannot be an action by the plaintiff against a third party because of the wrongdoing.
MR. RUBIN: That's not true. That's not true. It's filed by both. It's filed by both.
THE COURT: I'll just sit back and wait until you guys are all done and then I'll talk. Go ahead. Finish your point.
MS. MORRISSEY: I had finished my point. Mr. Rubin
MR. RUBIN: I'm sorry. I'm sorry to interrupt. I was just correcting the counterclaim was filed by both Mr. Mizrachi and JAL.
MS. MORRISSEY: But there is a third party complaint only by JAL.
MR. RUBIN: There's only -- there's a counterclaim, cross claim, counterclaim together, Mr. Mizrachi and JAL filed it together. Some of the counts they both brought.
MS. MORRISSEY: But there is a separate complaint.
THE COURT: Answer, doesn't change my ruling.
Now, does anybody have one more thing?
Okay. Hearing nothing.
We are going to talk about the trial date for a second. The short answer is I don't know when we're going to be able to do this. And I'm just going to preface this by saying and I know I got one of the parties on the call here, I'm going to preface this by saying this is another pitch for a bench trial. I can perfectly understand that there are strategic considerations at issue on both sides of the case and, you know, somebody may have watched today and say, that guy is a complete idiot, I would never have him decide anything more important than what kind of a treat to give my dog. I completely get all of that. But let me just make a little bit of a pitch for you.
First of all, I don't know when we're going to be able to try this case. And I I recognize that that might be in one party's strategic interest given all the litigation that's going on. But here's what's likely to happen ands going to be a little bit similar to what happened now. You remember when I set this trial date it wasn't necessarily the world's most convenient trial date for everybody but it's a slot and what's going to happen once the door gets opened backup again for jury trials, there's going to be a number of cases that have been waiting. There's probably going to be some prioritization given to the ones that had to get put off. This is going to be one of those cases because it's been put off twice now because of the pandemic. And it's a little bit older case. And so what's likely to happen is you're going to be told, here's your date, live with it. Okay? And that's because, and this is the part that's specific to it being a jury trial, the way we've decided to do this, and everything is subject to change, but I don't expect this is going to change is we are not starting more than one jury trial in the entire court on any given day because we're trying to limit the number of people here at once. So you could be told you're starting like the Friday of three weeks from now or the Thursday four weeks from now or whatever and it's pretty much just going to be told to you like that. With a bench trial, there's massively greater flexibility.
Secondly, with regard to -- and I know we have some witnesses in this case, and I don't recall exactly who they are or how many, we don't need to go into that now, there are some witnesses who are needing to testify remotely either because of medical conditions or because of where they're coming from, and I think -- I don't necessarily credit this, but I just kind of put it out on the table. A person might have legitimate questions about whether a jury would evaluate video testimony in the same way as live testimony. I personally don't tend to credit that, but some people do. I think most people would have less concern about that if it's a judge hearing testimony. That's the second thing.
Here's the third thing. You're talking about a case here which involves subject matter that is overwhelmingly likely that nobody on the jury is going to have any background. So it's, you know, hiring lawyers for business transactions. It's significant real estate and business transactions. And, again, I completely acknowledge, I tried cases for a living myself before I was a judge, I completely acknowledge that in any given case the jury's lack of knowledge may be perceived by one side or another as beneficial to that side, it's harmful to the other side. The one thing that I have a little bit of an advantage on, unlike you, I have talked to a lot of juries. You know, in the 21 years that I've been trying cases here, I've probably averaged about 12 or 13 jury trials to a year, so that's about 250, I've talked to all of them, and my ability to predict how a jury is going to evaluate evidence, even though I've seen and heard more jury trials probably than all of you put together, I become less and less confident on that in time and that doesn't mean they do a bad job. It's just I don't know in any given case what they're going to rely on. And you've got --it's a wild card, I guess that's what I would say. I don't say that because I think it's a bad system. I don't think it's a bad system. I think it's a great system and if we have a jury in this case I'm going to tell them, I'm going to give them a wave the flag speech about why it's a great system, but it has its pluses and minuses.
If we were -- I don't need anybody to react to this now, and if you want a jury trial, that's fine. It's everybody's constitutional right. I'm a believer in it a hundred percent. But in terms of, you know, getting a resolution to I'd say the case, it's this part of the party's fairly wide ranging disputes, you'd have a lot more flexibility and probably a little bit more predictability if you opted for a bench.
That having been said, it's up to you.
So what I'm going to do is I'm just going to -- just so I have a date in the hopper, I'm going to give you a date which is going to be like March, but it has probably an even bigger asterisk than when I gave you this date or the 23rd date because we just don't know. Itch your Honor, we had withdrawn our demand for jury trial.
THE COURT: I know. Why do you need to do that? I just said you don't have to react to it now. Nobody is currying favor right now. It's way less work for me if it's a jury trial because I don't have to make a decision, I don't have to write an opinion.
MR. RUBIN: I was just -- I really wasn't trying to. I just was picking up on what your Honor said.
THE COURT: So I'm just going -- 22nd of March next year, 3/22 of '12.
MR. DALTON: Your Honor, if I may.
THE COURT: I was looking at my calendar. I got to be looking at the screen again. Go ahead.
MR. DALTON: So the Florida case involving these parties and Mr. Holtzman and JAL and SJL is set for trial, Florida has -- we're put on an 8-week trial calendar that starts on the 15th of March, and so, you know, I don't claim to know -- THE COURT: Is that a jury case as well?
MR. DALTON: I think -- it was originally filed
MR. RUBIN: I believe your client has demanded a jury trial.
THE COURT: So it's a jury case. Okay. Are they trying jury cases in Florida right now?
MR. DALTON: The Court knows it's a jury case, and he set it for this period.
THE COURT: Yeah. Just like I did.
MR. DALTON: Right, exactly.
THE COURT: So my response to that is -- I have two responses to it. Number one, I'll worry about it when I have to worry about it. Number two, the cases are interrelated, you can prepare for both cases at the same time, you can save your client some money. Ha ha.
MR. DALTON: One other thing. You asked me to advise you of any developments in this regard.
THE COURT: Yes.
MR. DALTON: We have exchanged some -- well, I will just say.
THE COURT: Should I be clutching my heart here?
MR. DALTON: No, there is a mediation that has to take place in the Florida case by January 15th. I'll say that.
THE COURT: Okay. Is it likely -- how do they do it down there? Do they have like court appointed mediators or do you have to go out and find your own?
MR. RUBIN: I think it's our option. I think we can engage a private mediator or we can ask the Court for assistance.
THE COURT: One way or another, you have to do one.
MR. RUBIN: Yes.
MR. DALTON: Correct.
THE COURT: I mean, it would be reasonable to think that if you do a mediation, you're not -- if it gets serious, you're not going to be settling one of the various lawsuits, it would be all or nothing.
MR. RUBIN: I would assume that if there were -- if lightning were to strike and there would be a resolution, it would be all of them.
THE COURT: All I ask is if you guys get serious and I know Mr. Ordower is on the phone and I'm not saying this to be facetious about the case, but I am anyway, if you get close to settling the case, give me an advance warning so I'm sitting down. Be (laughter.)
THE COURT: Anyway. So I'm going to give you that date. Like I say, it's got a massive asterisk on it. I don't know if you pay attention to the stuff in Illinois. I know Mr. Rubin is out of state and Mr. Dalton. The reason why these restrictions got reimposed that we had before is that it's largely that the percentage of people tested that tested positive had gone up. Now, having said that, we're way under a lot of other places. Like we're way under Indiana, we're way under Wisconsin and I think we're even under Florida at this point. But it hit whatever threshold the governor is using. And it's gone up I think kind of -- the trend line, it's a jagged line like most lines are but the trend line has been going up for three weeks. If that keeps going up, I mean, who knows if anybody is going to be doing anything in court for a while.
That's the other thing. You could do -- I know that people don't always want to do this. You could do an entire bench trial by video if everybody agreed to it. Actually, let me just throw in one other thing about the jury aspect of this. And this is probably less of an issue in your case than it might be in some others, but I have one that I think is going to end up being the last case tried around here before we shut it down again that's going to trial next week where I think all by three of the witnesses are going to be testifying by video. There's I guess I would call it an optics issue with we make all these jurors come in here and then we don't make the witnesses come in and they get to testify over video screens from the comfort of their homes and how does a jury think about that and which way does that cut. To the extent we have more video witnesses in this case in front of a jury, that's a factor too because it's a wild card because you never know how it's going to go. I just throw all that out.
What I'm going to do is -- so the trial date is vacated. It's reset to the 22nd of March, and I'm going to set you for a phone call in about six weeks or so, and maybe you'll know by then when you're doing your mediation in the Florida matter.
Could you do a phone call on -- at 9:0 0 o'clock on --excuse me -- at 9:1 5 on Monday the 14th of December?
MR. RUBIN: Yes.
THE COURT: Does that work?
MR. RUBIN: 9:0 0 a.m. central time?
THE COURT: Central time.
MR. DALTON: What time?
THE COURT: 9:1 5 on the 14th of December.
MR. DALTON: Yes.
THE COURT: We'll use the same call number as before. We'll put that in the order so you don't have to hunt for it. Anything else anybody wants to bring up? I'll get rulings --I'm not going to guarantee exactly when I get them out. I know I still have to decide and I'll get that out promptly.
MR. DALTON: I do have one clarification.
THE COURT: Yep.
MR. DALTON: On the exhibit lists.
THE COURT: Yeah.
MR. DALTON: There is an opportunity to object to exhibits -- object -- not exhibit lists, the witness list.
THE COURT: Yep.
MR. DALTON: There's an opportunity to object to certain witnesses not just to their testimony to reserve at trial, but three.
THE COURT: Whether they should come in at all.
MR. DALTON: Three of plaintiff's withins were just disclosed. They're lawyers.
THE COURT: Hang on a second. Let me just pull up the final pretrial order here for just a second. I overlooked that. Witness list, plaintiff witness list. We're talking about Andrew -- I'm guessing Andrew Castricone, Sarah Balkissoon, and Joseph Sacher?
MR. RUBIN: Sacher.
MR. DALTON: Sacher, yeah.
THE COURT: Okay. And are these -- are these fact witnesses or what are they exactly?
MR. RUBIN: Yes, your Honor. These are lawyers who's name are on all the invoices that were produced in February I believe -- I'm sorry, in October of 2019. So two are from the firm of Gordon Reese and one is from Mayer Brown.
THE COURT: What are they going to testify about?
MR. RUBIN: They would testify simply about the work, the scope of work that was done. In light of your Honor's ruling, Mr. Castricone we wouldn't call because he only worked on the California matter. So Mr. Sacher is heading up the Florida matter and Ms. Balkissoon would.
THE COURT: So basically these are the witnesses who are going to put in the fees that were charged in the other matters.
MR. RUBIN: Correct, summary of the fees. Here is the scope of work. Here is what we were asked to do. These are the people who worked on the matter. And this was -- and this was the work that we did. And these names were all part of the invoices.
THE COURT: I'm not asking for argument right now. I just wanted to get a sense of
MR. RUBIN: That's who they are. Relatively short.
THE COURT: Balkissoon. That's an, there was a Tony Balkissoon I think from Chicago. Are they related?
MR. RUBIN: I'll have to ask.
THE COURT: Can't be a lot of Balkissoon lawyers in Chicago.
Okay. So thanks for bringing that up, Mr. Dalton. That's a legitimate thing to talk about now. So I think what I'd like to get, though, I mean, I can guess what the arguments are on both sides. I don't really have to guess because they're kind of sketched out a little bit in this thing. I think it would make sense -- I think it would be make sense to do the following. So basically, yeah, hang on a second. Let me think this through. I'm trying to figure out a way to do two briefs and if we're doing two briefs and keeping them short who ought to be first.
So I think the way to do this is have the plaintiff file something on these folks. I'm going to limit you to let's say 8 pages which would be half the normal page limit which basically explains in a nutshell as you just did, it can be a really small nutshell what they're going to talk about and then why despite the fact this they were not on the 26(a) disclosures why they should be allowed to testify. You can anticipate what the arguments are going to be, and I will just tell you that I think -- well, I've written a couple of things about this too, and although I remember but I am not going to remember the name of the company, it was a case involving one of Oprah win free's company, so I think the name HARPO is in the title I think. This probably goes back about five or seven years. So you might want to look -- it would make sense for you to look at anything I've written about this topic, in other words, the extent to which the fact that somebody's name has quote, unquote come up as opposed to being identified specifically as a witness makes a difference or not. So what I'd like to get is something from the plaintiff no more than 8 pages let's say ten days from now, so that would be a week from Monday. What's that? That's the 16th. And then something from the defendant 10 days after that no more than 8 pages explaining why you think you'd be unfairly prejudiced or it basically boils down to substantially justified or harmless is what it boils down to.
MR. DALTON: Your Honor, that's the 16th.
THE COURT: Yeah. Ten days would be Thanksgiving. Would you rather have it due right after or right before?
MR. DALTON: That's
THE COURT: There's only one right answer to that question, but usually everybody thinks the right answer is different from the one I think.
MR. DALTON: You're going to say the 25th is the right answer.
THE COURT: That's the right answer, but I'm not writing the thing, so I don't care. If you want to have it due the Monday after, that's fine with me.
MR. DALTON: Let's see. The 16th is a Monday. So we'd have until the following Wednesday to reply.
THE COURT: You'd either have until the 25th or you'd have until the 30th. You pick.
MR. DALTON: I'll take the 25th. That's fine with me.
THE COURT: Yes.
MR. DALTON: 8 pages?
THE COURT: 8 pages. No. reply. Mr. Rubin you know what the arguments are going to be, anticipate them all.
MR. RUBIN: Your Honor, frankly, we were surprised it wasn't in a motion in limine, but because it seems like we're having extra pages for motions in limine because this would be excluding a witness.
THE COURT: But what it's doing is saving me discussion later because we're going to have to talk about it one way or another. You don't forfeit an argument by not raising it in a motion in limine.
MR. RUBIN: Of course. As we noted in our exhibits, we offered depositions from the time that they were disclosed -- THE COURT: Make sure you put that in whatever you file.
MR. RUBIN: The other -- your Honor, not to over stay our welcome, there is another issue that could require briefing. I know that -- I know that it's -- you're loathe to hear about things that there's no context for, but just briefly, as you know, the Florida case is ongoing and there were third party subpoenas served in those cases, and documents that we just received in the last couple of weeks that we have been able to make our way through shows that there were at least based upon our initial review hundreds of emails that Mr. Ordower was on as an author or recipient that squarely relate to this case and that were sought in discovery that were not produced in this case. I arranged it with Mr. Dalton, I sent him a letter, I showed him some samples of the some of the emails that were produced by the third parties that we didn't get in Mr. Ordower's production and we also didn't get in Mr. Hotlzman's or anybody else's production. It's troubling because we're finding this out now and it's not four emails, it's like 7 or 800 as far as we can tell. I'm not here to tell you that every single one of those is a hot or document central to the case, but certainly some are, and so it's a problem when you're obviously we now have a continuance because of the pandemic, but we were, you know, before this morning, we were three and a half weeks before trial and it's not an encouraging sign when you see hundreds of documents that the defendant's on that were never produced and that were called for. So we think it's going to be necessary -- I've arranged it with Mr. Dalton, I sent him a letter. Mr. Dalton said he's going to look at it. He understood why I sent the letter. But I think that it's a discovery problem that we're going to have to raise with the Court.
MR. DALTON: I will just say at first blush it appears that most of the documents that they point out as examples I don't think were requested in their original requests for production. So I mean, I can point that out if Mr. Rubin files a motion.
THE COURT: Okay. All right. I don't need to say anything about that. I'll worry about it when I have to. All right. Everybody have a good day. Take care.
MR. RUBIN: Your Honor, so we're free to file what we think is appropriate on that.
THE COURT: So a lawyer once told me that paper doesn't refuse ink. So there you go.
MR. RUBIN: I know nobody files anything on paper anymore, but, you know, you get the point.
MR. RUBIN: Understood. Thank you.
THE COURT: Take care. Bye.
MR. DALTON: Thanks, your Honor.