Kirzhner v. Silverstein et al

Filing 218

ORDER : re: 204 MOTION for Protective Order filed by David Mansfield, is denied as abandoned. 144 MOTION for Protective Order Concerning Illegal Recordings and request For Evidentiary Hearing filed by BMGI Corporation, David Silverstein Investments, LLC, David Silverstein, Evergreen Industries, Inc., BMGI Holdings, LLC, DSI Investments, LLC is granted in part, by Magistrate Judge Boyd N. Boland on 6/13/11. (bnbcd, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Boyd N. Boland
Civil Action No. 09-cv-02858-CMA-BNB
ILONA KIRZHNER,
Plaintiff,
v.
DAVID SILVERSTEIN,
EVERGREEN INDUSTRIES, INC., a Colorado corporation, f/k/a Breakthrough Management
Group International, Inc., f/k/a Breakthrough Management Group, Inc.,
DAVID SILVERSTEIN INVESTMENTS, LLC, a Colorado limited liability company,
DSI INVESTMENTS, LLC, a Colorado limited liability company,
BMGI CORPORATION, a Delaware corporation, and
BMGI HOLDINGS, LLC, a Delaware limited liability company,
Defendants.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter arises on the following:
(1)

Defendants’ Joint Motion for Protective Order Concerning Illegal

Recordings and Request for Evidentiary Hearing [Doc. # 144, filed 3/14/2011] (“Defendants’
Motion for Protective Order”); and
(2)

Petitioner [Mansfield’s] Motion for Exclusion of Illegally Obtained Evidence

and Protective Order [Doc. # 204, filed 5/13/2011] (“Mansfield’s Motion for Protective
Order”).
I held a hearing on the motions this afternoon and made rulings on the record, which are
incorporated here. In general, I have adopted the agreement of the parties (excluding Mr.
Mansfield, who did not appear for or participate in the hearing).

IT IS ORDERED:
(1)

Defendants’ Motion for Protective Order [Doc. # 144] is GRANTED IN PART,

and a protective order is entered as follows:
(a)
The Recording1 will not be played during any discovery
activity or during trial by any party;
(b)
The Recording will not be played for use during the
examination, cross-examination, impeachment or rehabilitation of
any witness either during a discovery deposition or during trial by
any party;
(c)

The Recording will not be introduced into evidence at trial;

(d)
No transcript of the Recording will be used during any
discovery activity or during trial by any party;
(e)
No transcript of the Recording will be used during the
examination, cross-examination, impeachment or rehabilitation of
any witness either during a discovery deposition or during trial by
any party;
(f)
In the event Mr. Mansfield testifies at the trial in person
(rather than by his deposition), the lawyer examining him will not
have listened to the Recording, read the transcript of the
Recording, or had the transcript of the Recording read to him; and
(g)
No transcript of the Recording will be introduced into
evidence at the trial.
(2)

Mansfield’s Motion for Protective Order [Doc. # 204] is DENIED as abandoned.

1

“Recording” refers to the tape recording made by Ilona Kirzhner on October 21, 2010, of
her conversation with David R. Mansfield during three telephone calls, which is approximately
one hour and fourteen minutes in duration. The recorded conversation occurred while Mr.
Mansfield traveled by train from Philadelphia, Pennsylvania, to Baltimore, Maryland, as
described in the Affidavit of David Mansfield [Doc. # 144-3] at ¶¶4-7, and in Mansfield’s
Motion for Protective Order [Doc. # 204] at p. 1.
2

Dated June 13, 2011.
BY THE COURT:
s/ Boyd N. Boland
United States Magistrate Judge

3