Levinson et al v. PSCC Svc Inc et al

Filing 592

ORDER: See attached Order on Objections to Proposed Trial Exhibits. Signed by Judge Vanessa L. Bryant on 6/14/13. (Ives, D)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
STEPHEN R. LEVINSON; RICHARD E.
LAYTON; AND DR. R. LAYTON P.A. 401(K)
PLAN
PLAINTIFF,
v.

:
:
:
: CIVIL ACTION No. 3:09-cv-269(VLB)
:
:
WESTPORT NATIONAL BANK;
:
DEFENDANT.
:
-----------------------------------------------------------------X
AUDREY SHORT, INDIVIDUALLY AND
:
FAYE SHORT, INDIVIDUALLY AND AS
:
TRUSTEE FOR THE FAYE S. ALBERT
:
RETIREMENT PLAN, ALBERT RETIREMENT :
PLAN.
:
:
PLAINTIFFS,
: CIVIL ACTION No.3:09-cv-1955(VLB)
v.
:
:
CONNECTICUT COMMUNITY BANK, N.A.
:
DEFENDANT.
:
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SOL DAVIS, INDIVIDUALLY AND AS
:
TRUSTEE OF THE SOL DAVIS
:
RETIREMENT PLAN, ET AL.
:
:
PLAINTIFFS,
: CIVIL ACTION No. 3:10-cv-261(VLB)
v.
:
:
CONNECTICUT COMMUNITY BANK, N.A.
:
JUNE 14, 2013
OWNER OF WESTPORT NATIONAL BANK :
DEFENDANT.
:
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ORDER ON OBJECTIONS TO PROPOSED TRIAL EXHIBITS
The parties’ Joint Trial Memorandum and incorporated Exhibits set forth
numerous objections to the parties’ proposed trial exhibits. [Levinson dkt. no.
529; Short dkt. no. 194 (adopting Levinson Trial Memo); Davis dkt. no. 309
(adopting Levinson Trial Memo)]. The Court rules on these objections as follows:
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Exhibit A to the Joint Trial Memorandum: Parties’ Proposed Witnesses
Plaintiff has proposed several witnesses who will testify in their capacities
as executors or executrices of several plaintiffs’ estates. Defendant has objected
to any testimony regarding the deceased plaintiffs’ communications by their
estates as hearsay. This objection is SUSTAINED; designated representatives of
various plaintiffs’ estates may only testify to facts within their personal
knowledge.
Exhibit B to the Joint Trial Memorandum: Plaintiffs’ Trial Exhibit List
Exh. 14: Defendant’s objection is SUSTAINED as to relevance. Plaintiffs have not
identified what material fact at issue this exhibit would tend to prove or
disprove. Without knowing the relevance of this document, Defendant’s
hearsay objection is also SUSTAINED.
Exhs. 24, 52, 56: Defendant’s objections to these exhibits are OVERRULED. The
parties should attempt to stipulate to the identity of the account holders. If
the parties are unable to stipulate, these exhibits may be admitted during
the liability phase of trial if they are not cumulative, but Plaintiffs must
submit amended exhibits with all numbers redacted. The exhibits as they
currently appear may be admitted during the damages phase of trial only, if
they are not cumulative.
Exh. 28: Plaintiffs have objected to the introduction of Defendant’s Exh. 1076,
which is identical to Plaintiffs’ Exh. 28 (save for two allegedly missing
pages). The Plaintiffs’ hearsay objection is SUSTAINED as to Defendant’s
Exh. 1076; thus, BOTH exhibits are inadmissible.
Exh. 43: Defendant’s objection is OVERRULED. This exhibit is admissible
subject to this document being offered after the Plaintiffs have laid a
foundation to support their claim that the Bank’s conduct in monitoring
cash transactions in excess of $10,000 and allowing customers private
access to their safe deposit boxes is a violation of a law or policy.
Exh. 45: Defendant’s objection is SUSTAINED. There is no indication that this
memorandum is a record of regularly conducted activity of the Bank under

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Fed. R. Evid. 803(6), nor is the document dated or signed so its authorship
and authenticity cannot be discerned.
Exh. 55: Defendant’s hearsay objection is SUSTAINED. This document is
unsigned and appears to be a draft.
Exh. 58: Defendant’s objection is SUSTAINED. This document appears to be
relevant for damages only.
Exh. 59: Defendant’s objection is SUSTAINED. This document appears to be
relevant for damages only, if offered in its complete form or shown not to
be incomplete.
Exh. 87: Defendant’s objection is SUSTAINED as to relevance; admission of this
exhibit is subject to the plaintiffs establishing the Bank’s right to dishonor
checks drawn on these accounts.
Exhs. 91, 92: Defendant’s objections are OVERRULED.
Exh. 93: Defendant’s objection as to relevance is SUSTAINED. The Court cannot
determine the relevance of this IRS letter, particularly in the absence of the
information provided to the IRS to which the letter responds, information
as to whether this guidance is applicable during the relevant period in this
case, and in the absence of any authentication of this document.
Furthermore, the letter contains complex tax principles, the meaning and
significance of which would appear to be beyond the ken of the average
juror, and therefore would be potentially confusing to the jury absent
expert opinion.
Exh. 94: Defendant’s objection is SUSTAINED absent an expert opinion to
establish the relevance of this document. This is regulatory guidance
provided to banking professionals to assist them in their professional
duties, and is thus beyond the knowledge of the average juror. It is
inadmissible absent expert testimony.
Exh. 95: Defendant’s objection is SUSTAINED absent an expert opinion to
establish the relevance of this document. This is regulatory guidance
provided to bank regulators to assist them in the performance of their
professional duties, and is thus beyond the knowledge of the average juror.
It is inadmissible absent expert testimony.
Exh. 97: Defendant’s objection is SUSTAINED absent an expert opinion to
establish the relevance of this document. This is regulatory guidance
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provided to bank examining personnel and high ranking bank officers to
assist them in the performance of their professional duties, and is thus
beyond the knowledge of the average juror. It is inadmissible absent
expert testimony.
Exh. 99: Defendant’s objection is SUSTAINED absent an expert opinion to
establish the relevance of this document. This is guidance provided to
auditors to assist them in the performance of their professional duties in
auditing “service companies,” and is thus beyond the knowledge of the
average juror. It is inadmissible absent expert testimony.
Exh. 116: Defendant’s hearsay objection is SUSTAINED, as the material fact at
issue for which the exhibit is offered is unspecified by the Plaintiffs.
Exhs. 121D, 122C, 123C, 124C, 125C, 126C, 127C, 128C, 129C, 130C, 131C, 132C,
133C, 136D, 142D, 144D, 145D, 149C, 151D, 152C, 159: Defendant’s
relevance objections are SUSTAINED. These exhibits are relevant and
admissible as to damages only, should the jury find the Bank liable under
breach of contract or breach of fiduciary duty in the liability phase of trial.
Exh. 153: Defendant’s objection is OVERRULED. This exhibit is relevant to show
management of Plaintiffs’ investment funds.
Exh. 154: Defendant’s objections are OVERRULED. Plaintiffs are ordered to
show cause why this document should not be compiled so that the relevant
portions are reflected in a demonstrative exhibit.
Exh. 155: Defendant’s objection is OVERRULED. Plaintiffs are ordered to show
cause why this document should not be compiled so that the relevant
portions are reflected in a demonstrative exhibit.
Exh. 156: Defendant’s relevance objection is OVERRULED. The Plaintiffs are
ordered to show cause why this document should not be compiled so that
the relevant portions are reflected in a demonstrative exhibit. Defendant’s
hearsay objection is SUSTAINED. This exhibit must be redacted to exclude
handwriting.
Exh. 157: Defendant’s relevance objection is SUSTAINED. This exhibit is
relevant and admissible for damages only. The Plaintiffs are ordered to
show cause why the statements cannot be summarized in a demonstrative
exhibit.

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Exh. 158: Defendant’s relevance objection is SUSTAINED. This exhibit is
relevant and admissible for damages only, to the extent that it is not
cumulative.
Exh. 161: Defendant’s objection is SUSTAINED, as the parties do not have an
expert to testify to the collective investment fund issue. This is summary
guidance written for bank executives to assist them in the performance of
their professional duties, and is thus beyond the knowledge of the average
juror. It is inadmissible absent expert testimony to explain the exhibit’s
contents and application to this case.
Exh. 162: Defendant’s relevance objection is SUSTAINED. This exhibit is only
admissible if the Plaintiffs can establish that the Bank knew or should have
known of the article at the time of its publication.
Exh. 163: Defendant’s relevance objection is SUSTAINED. This exhibit is a
portion of a response provided to the State of Connecticut Department of
Banking and does not state expressly that “’NAV’ was not verified or
audited by CCB” as Plaintiffs claim.
Exh. 164: This document is inadmissible hearsay and is irrelevant for liability and
for damages.
Exhs. 167, 169, 170, 219, 222, 232, 236: These documents regarding required
minimum distributions pursuant to the IRS Code are irrelevant for liability
and for damages and are inadmissible. The actual amount of withdrawal
would be relevant to the issue of damages, but the reason for such
withdrawal is irrelevant. The relevance of the “level of disclosure to
Plaintiff” has not been established.
Exhs. 168, 204, 205, 229: These exhibits are irrelevant for liability or for damages
purposes and are inadmissible. The relevance of the “level of disclosure to
Plaintiff” has not been established.
Exhs. 186, 187, 188, 189, 190, 191, 192, 193, 199, 211, 214, 215, 220, 225, 226, 233,
238, 240: Defendant’s hearsay objections are SUSTAINED and these
documents are inadmissible. Furthermore, the relevance of these
documents is questionable as the Plaintiffs have not established what
material fact at issue these exhibits tend to prove or disprove. The
relevance of the “level of disclosure to Plaintiff” has not been established.
Lastly, these documents are cumulative of the account statements.

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Exh. 213: Defendant’s relevance objection is SUSTAINED.
Exh. 217: Defendant’s relevance objection is SUSTAINED.
Exh. 223: This exhibit is irrelevant for liability and for damages. There is no
claim that the Plaintiffs suffered a loss because the Bank failed to make
adequate disclosure of its custodial fees.
Exh. 231: Defendant’s objection is SUSTAINED. This exhibit may be offered only
for damages to the extent necessary in view of stipulations, compilations,
and demonstratives.
Exh. 237: Defendant’s hearsay objection is SUSTAINED.
Exh. 254: Defendant’s objection is SUSTAINED; this document is incomplete.

Exhibit C to the Joint Trial Memorandum: Defendant’s Trial Exhibit List
Exhs. 1025, 1026, 1027, 1028, 1029, 1030, 1031: Plaintiffs’ objection is
OVERRULED; these exhibits appear to be redacted as per the parties’
stipulation.
Exhs. 1046, 1047, 1049, 1050, 1155: Plaintiffs’ relevance objections are
SUSTAINED. The Defendant has not identified what material fact at issue
in this case these plan documents tend to prove or disprove.
Exh. 1076: Plaintiffs’ hearsay objection is SUSTAINED. This exhibit constitutes
inadmissible hearsay with no identified exception. Defendant’s Exh. 1076
and Plaintiffs’ Exh. 28 are identical (save for two allegedly missing pages);
thus, BOTH exhibits are inadmissible.
Exhs. 1085, 1090, 1104, 1131, 1132, 1156, 1157: Plaintiffs’ objections are
SUSTAINED. These exhibits constitute inadmissible hearsay; no facts



  Simple business correspondence – including the business letters offered as
exhibits here – do not constitute records of regularly conducted activity under
Fed. R. Evid. 803(6) without further evidence that such correspondence was kept
in the course of a regularly conducted business activity and that it was the
regular practice of the business to make such records. See Fed. R. Evid. 803(6);
Metro. Enter. Corp. v. United Technologies Int'l., CIV303CV1685JBA, 2006 WL
798870, *2 (D. Conn. Feb. 28, 2006) (holding a business letter to be inadmissible
hearsay where “plaintiff has made no showing that it was a routine part of [the

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asserted support a conclusion that these documents are records of
regularly conducted activity under Fed. R. Evid. 803(6).
Exh. 1102: Plaintiffs’ relevance objection is SUSTAINED. Excerpts of this exhibit
may be admitted for impeachment, subject to authentication.
Exhs. 1103, 1118, 1158: Plaintiffs’ objections are OVERRULED; these are records
of regularly conducted activity under Fed. R. Evid. 803(6).
Exh. 1107: Plaintiffs’ objection is SUSTAINED. This is inadmissible hearsay; no
facts asserted support a conclusion that this is a record of regularly
conducted activity under Fed. R. Evid. 803(6). Additionally, this exhibit is
not relevant as it is not indicative of the practices and policies of BLMIS in
general but rather speaks only with respect to this particular account
holder.
Exh. 1108: Plaintiffs’ objection is SUSTAINED. This is inadmissible hearsay; no
facts asserted support a conclusion that this is a record of regularly
conducted activity under Fed. R. Evid. 803(6). Additionally, this exhibit is
incomplete and the Court questions its relevance.
Exh. 1109: Plaintiffs’ objections are SUSTAINED. The Court cannot discern
what material fact at issue in this case this letter would tend to prove or

entity]’s business to write letters such as [the proposed exhibit] to its customers”
and because “although plaintiff argues that it relied on [the entity]’s statements in
the letter, the test is whether [the entity] routinely relied on such records as part
of its business, a showing plaintiff has not made.”); Yankee Bank for Fin. & Sav.,
FSB v. Task Associates, Inc., 139 B.R. 71, 79-80 (N.D.N.Y. 1992) (holding business
letter to be inadmissible hearsay where, although it could be inferred that the
letter could have been generated in the ordinary course of the entity’s business
activity, “an inference would not be sufficient to comport with the Second
Circuit’s stringent regular practice requirement” and where there was no direct
evidence in the record showing that it was the entity’s regular practice to draft
such a letter); Fagiola v. Nat'l Gypsum Co. AC & S., Inc., 906 F.2d 53, 59 (2d Cir.
1990) (district court properly excluded exhibits as hearsay where “no attempt
appears to have been made to provide evidentiary support” for a finding that the
documents were made in the course of a regularly conducted business activity or
that it was the regular practice of the business to make such records). See also
Fed. R. Evid. 803(6) Advisory Comm. Note (“The element of unusual reliability of
business records is said variously to be supplied by systematic checking, by
regularity and continuity which produce habits of precision, by actual experience
of business in relying upon them, or by a duty to make an accurate record as part
of a continuing job or occupation.”). 
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disprove. Additionally, this is inadmissible hearsay and hearsay within
hearsay; no facts asserted support a conclusion that this is a record of
regularly conducted activity under Fed. R. Evid. 803(6).
Exhs. 1161, 1162, 1163, 1164: Plaintiffs’ objections are OVERRULED. These
exhibits are not hearsay; they are admissible not for the truth of the
exhibits’ contents, but rather for Silverman’s knowledge of the exhibits’
contents.
Exhs. 1018, 1020, 1084, 1088, 1091, 1101, 1119, 1159: Pursuant to information
presented during the May 23, 2013 Pre-Trial Conference with the Court, the
Court acknowledges that Defendant has voluntarily withdrawn these
exhibits without any ruling or intervention by the Court.

IT IS SO ORDERED.

________/s/__ ___________
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: June 14, 2013

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