Saint Louis University v. Meyer

Filing 122

TRANSCRIPT of Pretrial Motion proceedings of held on March 2, 2009 before Judge Carol E. Jackson. Court Reporter: Gary Bond, Telephone number 314.244.7980. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/25/2009. Redacted Transcript Deadline set for 4/6/2009. Release of Transcript Restriction set for 6/2/2009. (KKS)

Saint Louis University v. Meyer

Doc. 122

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I N THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION

SAINT LOUIS UNIVERSITY, A MISSOURI BENEVOLENT CORPORATION, PLAINTIFF,

6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 COURT REPORTER: AVIS MEYER, DEFENDANT. vs.

) ) ) ) ) ) ) Case No. 4:07-CV-1733-CEJ ) ) ) ) )

-- --- ---- --- ---- ---- --- ---- --- ----

BEFORE THE HONORABLE CAROL E. JACKSON UNITED STATES DISTRICT JUDGE PRETRIAL MOTION HEARING MARCH 2, 2009

GARY BOND, RMR, RPR THOMAS F. EAGLETON COURTHOUSE 111 S. TENTH STREET, THIRD FLOOR ST. LOUIS, MISSOURI 63102 314.244.7980

Dockets.Justia.com

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR THE DEFENDANT: FOR THE PLAINTIFF:

APPEARANCES

LEWIS, RICE & FINGERSH BY: FRANK JANOSKI, ESQ. DAVID WEDER, ESQ. 500 N. BROADWAY, SUITE 2000 ST. LOUIS, MISSOURI 63102-2147 314.444.7600 [e-mail]

POLSTER, LIEDER, WOODRUFF & LUCCHESI, L.C. BY: BRIAN GILL, ESQ. NELSON NOLTE, ESQ. 12412 POWERSCOURT DRIVE SUITE 200 ST. LOUIS, MISSOURI 63131 314.238.2400

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor . Meyer .

ST. LOUIS, MISSOURI; MARCH 2, 2009 9:45 a.m. THE COURT: MR. JANOSKI: THE COURT: Good morning. Good morning, Your Honor. This is St. Louis University v. Avis Who is here for

It is before the Court for trial.

the plaintiff? MR. JANOSKI: Frank Janoski from Louis Rice, Your

Also my associate David Weder is here and Danielle

Uy, St. Louis Univesity General Counsel and also Bridgette Gehm, one of our paralegals. THE COURT: All right. Good morning to all of you.

And for the defendant? MR. GILL: THE COURT: MR. GILL: Good morning, Your Honor. Good morning. My name is Brian Gill from the law firm With me is

of Polster, Lieder Woodruff & Lucchesi.

cocounsel, Nelson Nolte, and paralegal Marissa Lucchesi. THE COURT: Good morning to you. Mr. Janoski, I

noticed you don't have a lot of witnesses on your witness list. About how long do you think it will take for the

plaintiff to present its case? MR. JANOSKI: THE COURT: About four or five hours, Your Honor. Okay. All right. I note also that I guess the only

there were some motions in limine filed.

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one that really concerns me, and it is not really a motion in limine. It is a motion to I believe to strike two witnesses.

Well, it is a motion in limine by the defendant to exclude witnesses whom the defendant contends were not timely disclosed in disclosure and in discovery. My questions is: What do either of these witnesses

have to do with the issue that's involved in this case? MR. JANOSKI: Well, with regard to the two

witnesses , Your Honor, some of these witnesses will testify on the -- and let me get that -- with regard to various matters concerning this and going to as much the remedy that we're looking for and the motive as to looking at what the defendant has argued in his trial brief. They would be anticipatory of showing why the or the control the university has over the University News and its name and the usage of its name; the usage of its name with regard to Mr. Porterfield; and also when the students had decided that they were going to accept the charter, which has become an issue here as to why the defendant or would the defendant have dissolved the corporation without the Cease and Desist letters at all. Certainly , the defendant has stated that, you know, that he intends to take the newspaper independent at some point in the future. And, certainly, Mr. Porterfield is

going to address that from our standpoint.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 judgment. produced?

As it relates to Dr. Weixlmann, he will also testify in that regard of what the negotiations were at that time. These certainly are individuals that were disclosed we believe, Your Honor, in discovery; that in response to interrogatory responses, we referred to documents that were produced, and they were named in those documents. They

certainly have had four months in which to take their deposition . We've made that offer to them a long time ago,

and they've had their affidavits for over four months now. THE COURT: Well, were they identified as witnesses

who had information or evidence on the issues that you tell me today they're going to testify about? MR. JANOSKI: In the documents, they do. Yes, Your

Honor and also in their affidavits. THE COURT: Okay. And when were these affidavits

MR. JANOSKI:

They were with regard to the summary

I think it was over four months ago that we had

done that. THE COURT: Okay. But when you made your Rule 26

disclosures, they weren't mentioned or were they? MR. JANOSKI: No. No, Your Honor. However, we said

that other people would be mentioned as discovery went along; and they were mentioned in discovery. And responses to

interrogatories , we said that there was information, and they

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were mentioned in Miss Banantes (phonetic) and Dr. Meyer's deposition . They were also mentioned, as I said, in the documents ; and there is a discovery response that said Individuals with knowledge were in those documents. they were mentioned in about 200 documents each. weren't just slipped in somewhere. THE COURT: mentioned . Well, their names may have been Now,

They

But my question is whether the substance of the

information that they had was disclosed adequately in these materials ? MR. JANOSKI: We think it was open as to what they And as a

would , because they're going to be referred to.

matter of fact, the defendants, some of their exhibits themselves are from those particular individuals. couldn't have been surprised. THE COURT: Nolte ? MR. NOLTE: Your Honor, these witnesses were never All right. All right. Mr. Gill or Mr. So they

disclosed in interrogatory responses directly relating to this issue, asking them for who they were going to call at trial. In fact, that interrogatory answer was not answered at all with any of the witnesses that are being called today. We are just going after Mr. Porterfield and Mr. Galli,

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because we have no idea -THE COURT: MR. NOLTE: apologize . THE COURT: MR. NOLTE: Okay. Also in this case, Avis Meyer was And who's the other one? Mr. Porterfield and Mr. Weixlmann. I

sanctioned $3,900 for failure to properly supplement interrogatory response. And I think in this case where the

Rule 26(a) disclosures, which provided only Avis Meyer as a witness was never supplemented with any witnesses or the Interrogatory Number 16 response, which was not provided any witnesses is telling that they are sandbagging on these people. The fact that they submitted affidavits in response to summary judgment motions after the end of the discovery still doesn't excuse the fact they were never disclosed in interrogatory response or Rule 26(a) disclosures. The fact

that they were mentioned in documents that they were produced doesn't mean that they were going to testify at trial or we understand the substance of their testimony. So just merely being mentioned in documents as well as many other people, basically, if they're allowed to testify now, then SLU is allowed to sandbag on their requirements and their responsibilities under the rules of discovery.

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THE COURT:

Okay.

All right.

Well, I don't like to

deal with discovery problems at trial, for obvious reasons. It delays the proceedings. so I have to address it. I also feel that the parties should follow the rules of discovery and disclosure. You all know what they are, and The issue here, it But, you know, this has come up

you know what your responsibilities are.

seems to me, involves these two individuals who didn't just materialize out of nowhere. These were individuals who were, The extent to which the

I believe, known to both sides.

knowledge of their testimony or their anticipated testimony is known remains to be seen. But I'm not convinced that, even if this is an untimely disclosure, I'm not convinced that the defendant is prejudiced by it. So here's what I'm going to do. I'm also

not 100 percent convinced that these witnesses are relevant to the sole remaining issue involved in this case. deal with that when they testify. I'm going to let them testify. I'm going to deny But I'll

the motion in limine to exclude witnesses, which is Document Number 96. I'm going to deny that without prejudice. Mr.

Nolte, I don't know if you or Mr. Gill will be handling the cross-examination of these witnesses. But if it appears that

their testimony gets into areas that you feel you have not had adequate notice of and opportunity to explore before

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trial, then you can raise this issue again, and I'll address it and determine whether you have sustained any prejudice by their being allowed to testify. Okay . Now, as far as any objections that were made

in your pretrial submissions directed to exhibits, you can make those objections during trial as those exhibits are offered, and I'll rule on them in that manner. The same

applies to any objections to depositions or interrogatory responses. I'll rule on those as they are made during the

course of the trial. There are some additional motions in limine. defendant has a motion in limine to preclude certain testimony that he anticipates will be provided or presented by the plaintiff; likewise, the plaintiff has a motion in limine that relates to some evidence that it expects the defendant to present. I'm going to deny both of these The

motions in limine without prejudice. To the extent that either party attempts to elicit testimony or present evidence that I believe is not relevant to the issue remaining in this case, I will rule on that; and I will exclude that evidence. Since we don't have a jury,

there isn't any concern about presenting evidence that the jury might hear and take into consideration improperly. I will rule on all hearsay objections that may be made during the trial, as well as any objections to evidence

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that anyone believes is not relevant.

So the motions in

limine Number 98 and 93 are denied without prejudice. Okay . Now, I know that sometime ago there was a

Motion for Sanctions filed by the plaintiff based on a claim that the defendant destroyed evidence improperly. And I

don't remember how much discussion we had about this motion the last time we were together. ago. But let me just say this about the motion. didn't say it before, I'll say it now. If I Well, it was some months

I'm very troubled by

the manner in which these e-mails and other items of evidence -- other correspondence -- were handled Dr. Meyer, given the fact that he was placed on notice not to destroy evidence. And he made the decision to delete certain e-mails

and apparently did so without seeking the advice of his counsel in determining whether or not these were in fact materials that should have been retained. That's very disturbing, and I think that it was in complete disregard to his obligation to maintain evidence for purposes of discovery. So I believe that Dr. Meyer acted What I don't agree with is the

improperly in that regard.

sanction that the plaintiff requests, which is essentially entry of a default judgment against the defendant by striking his Answer. I don't believe that that drastic sanction is

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appropriate , given the conduct on the defendant's part. was wrongful. This is no doubt about it. The extent to

It

which the defendant has been prejudiced is very difficult to determine , in part, because the documents are gone. And also, since this motion was filed, a good portion of the plaintiff's case has been dismissed. now down to one claim. So we're

And the extent to which destruction

of these documents has materially affected the plaintiff's ability to prove its claim really cannot be determined. So I

don't believe it is appropriate to grant a default judgment in favor of the plaintiff as a sanction; however, I believe that some sanction is appropriate. At the very least, the

defendant should be required and will be required to pay the plaintiff's attorney's fees in connection with presenting this Motion for Sanctions. Further sanctions, I will consider. But I can tell

you right now that there will be an award of attorney's fees for the plaintiff. Beyond that, I can't tell you at this And

time what I believe will be a further sanction, if any. I'll just say this:

This is the kind of behavior that really

should never have occurred. Dr. Meyer, you were represented by able counsel. you were unsure about whether something was important or unimportant , it wouldn't have taken you very much time to ask them in advance of your destroying it. I know that you're an If

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intelligent man.

And while I don't believe there was any

intent on your part to thwart the plaintiff's case -- at least I don't have any evidence of that -- this was reckless and perhaps thoughtless behavior on your part. you ready? MR. JANOSKI: I believe there are two other motions. Okay. Are

Just so the Court's record is cleaned up, there is a Motion for Leave to Amend Exhibit Lists, Your Honor. THE COURT: MR. JANOSKI: That's granted. And then there is also a Motion to Your

Strike Belated Pretrial Filings that we had filed. Honor , I think thaat has become moot. THE COURT: Limine? MR. JANOSKI: THE COURT: Yes, Your Honor. Okay. Yes.

Oh, this relates to the Motions in

That motion, which is Are you ready to

Document Number 102, is denied as moot. proceed, Mr. Janoski? MR. JANOSKI: THE COURT: MR. JANOSKI:

Yes, I am, Your Honor. All right. May it please the Court, my name is

Frank Janoski, and I'm with the law firm of Louis, Rice & Fingersh, and I represent St. Louis University in his matter. The plaintiff, St. Louis University, is a Missouri Benevolent Corporation; and this is not in dispute. Thus, it

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is by Missouri statute and equitable principals entitled to the exclusive right in its name and "the power to exclude others from assuming, adopting, or using its name; a color able imitation thereof; or calculated to deceive any person with respect to such corporation." Missouri Statute Chapter 415.105. And that's

And, Your Honor, under the

item sonance (phonetic), it doesn't matter whether the "St." in St. Louis University is "St." or "Saint." it is also a colorable imitation thereof. But the evidence will show there is little dispute as to the facts, and we will submit that the requested remedy is justified by defendant's conduct. The evidence will show And, you know,

that defendant Meyer is an individual employed with St. Louis University for over three decades; a tenured professor. He

was very familiar with the university's campus newspaper, The University News and its long-standing tag line, "A Student Voice of University Since 1921." a copy editor for the newspaper. In March of 2007, the defendant assumed and adopted the name, "St. Louis University," within the name of his own nonprofit corporation. The corporate name is nearly He was, among other things,

ident ical to that used by St. Louis University in connection with its campus newspaper. University. " It included the name, "St. Louis

He created the corporation as a not-for-profit

and stated in it, the evidence will show, that it would

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publish a weekly newspaper. He did this so that the new not-for-profit would look like The University News and would benefit from the history and recognition of the newspaper and that SLU had gathered through its many years of use. The evidence will

show after defendant Meyer was found out with regard to the formation of the corporation and notified by St. Louis University on several occasions of its objection , the defendant then proceeded to terminate the corporation. However , Your Honor, the facts will show that, unlike his incorporation papers, where he identified his home address, the defendant submitted papers on St. Louis University letterhead that of The University News. The

letterhead that he used had a St. Louis University address on it. The defendant then proceeded to use his university

signature block and indicated his university address for correspondence . The evidence will also show a fax line at the top of the documents that were submitted, which show printing, stating among some other things, "SLU.Communication. "SLU" an abbreviation for "St. Louis University." this on behalf of his not-profit corporation. And

He did

SLU had not

authorized the use of the letterhead; his address at SLU for his private enterprise. And he created a permanent document

in the Missouri Secretary of States's office.

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We will submit that this is a clear violation of Missouri Statute 417.150 and was willfully done to deceive. It also invades St. Louis University's right with regard to the integrity of its name and to the exclusive use of such name under the statute. So at the end of the evidence , we will be seeking a remedy justified by this wrongful conduct. We will be asking

for an order from this Court mandating Dr. Meyer correct the record in the Missouri Secretary of State office. We will

also be seeking an injunction prohibiting him from any such conduct in the future. This will be based on interviews he

has given, where he states that there is a plan to have a student newspaper off-campus; and he further said that he would take as long as he was 80 years old to have this truly independent . Finally , we will ask for attorney's fees, because his conduct and the unusual circumstances ; his discovery abuses which the Court in part has already ordered monetary sanctions ; defendant Meyer's intentional destruction of evidence; and his conduct, which has required us to be here today . Thank you, Your Honor. THE COURT: Don't sit down yet. I have a question.

One of the remedies mentioned that you intend to ask for is that Dr. Meyer be ordered to correct the record in the Missouri Secretary of State's office ?

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MR. JANOSKI: THE COURT: MR. JANOSKI:

Yes, Your Honor. And what record would that be? That would be the record where there

is his incorporation documents and also the documents where he has dissolved the corporation. And it appears, I believe,

that St. Louis University was compliant in that. We have submitted with regard to our trial brief and exhibits our proposed Findings of Fact and Conclusions of Law; the document that is used in the Missouri Secretary of State's office for this particular purpose to amend a record. And also we have submitted to the Court what we believe is the required language or the language that Dr. Meyer should be required to insert in that document and sign. THE COURT: Okay. Also, you mentioned that there

was or there is evidence that Dr. Meyer has stated his intention to move the newspaper off-campus or to start an off-campus student newspaper? MR. JANOSKI: Yes, Your Honor. It is in an

interview that he gave in August of 2000 or that was published in August of 2007. And I believe it is Exhibit 14

that you will find in your binder that we have for you; and that our witness will testify ; and that Dr. Meyer will be examined on. THE COURT: Well, there isn't anything wrong with

Dr. Meyer or anyone else starting a student newspaper

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Off-campus -MR. JANOSKI: THE COURT: No. -- as long as they don't use St. Louis

University's name or any of its marks or insignia or anything that would indicate or suggest that it was a publication of the university. MR. JANOSKI: THE COURT: This is true, Your Honor. So was his statement that he intends to

use St. Louis University's name in some way with this off-campus newspaper or that he somehow intends to have people believing that it's a St. Louis University publication? MR. JANOSKI: Well, not necessarily in that article, And I don't know what

but he shows his intent, number one.

else he did in that regard, because he did destroy all of his documents . And so we don't have anything related around that

or any of the communications that he had with regard to that. Certainly , his indication was, A, that, you know, he incorporated under that name. He also said he didn't believe

at that time that the university had trademark rights in that particular name, even though he used "St. Louis University." THE COURT: MR. JANOSKI: Okay. Well, there will also be other

testimony to support why we believe that it is appropriate for an injunction to be in place with regard to the name,

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"St. Louis University," because, in order let's say this enterprise to have any credibility or for it to be able to raise funds in the way that it has now, it will have to associate itself with St. Louis University in some way. THE COURT: Okay. Also I noticed and I believe it

was in your brief -- yes -- that you also intend to seek attorney's fees and costs? MR. JANOSKI: THE COURT: MR. JANOSKI: THE COURT: MR. GILL: Yes, Your Honor. Thank you. You're welcome. Good morning? Good morning. May it please the Court,

my name is Brian Gill, and I'm an attorney with the law firm of Polster, Lieder Woodruff & Luchessi, and I represent Dr. Avis Meyer. Since the time of FDR, a select group of SLU students have met to produce a student newspaper. Despite

their other responsibilities, such as academics or jobs, they have met on a weekly production night to produce the weekly newspaper for the community of SLU. arduous task. Production night is an

Typically, production night carries over into

the next morning. Regardless of the next day's academic commitments, these students produce the weekly newspaper. For over 30 One

years of this time period, there has been a continuum.

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person for 30 years has continually provided the support for the student newspaper. This person, taking time away from

his own family, provided his support on weekly production nights for the student staff. And on these nights, he advised, mentored, coached, cheerleaded, and encouraged the student staff to get through production night. This man is Dr. Avis Meyer, one of most According to the plaintiff's

honored of SLU professors.

website, an alumni survey identified him as one of the ten most influential an effective teachers at SLU. The Office of

Student Life has honored him by establishing an annual award, the Avis Meyer Outstanding Award. The evidence will show that a little over two years ago, Saint Louis University and the student staff had an issue with the charter of the student newspaper. The

evidence will show that because of this issue, the student staff briefly considered moving the student newspaper off-campus . The evidence will show that Dr. Meyer, thinking that the name of the student newspaper belonged to the student staff , filed with the Missouri Secretary of State the incorporation papers under the title, "The University News, a Student Voice Serving St. Louis University since 1921." evidence will show that Dr. Meyer filed the nonprofit paperwork to reserve the students' name, in case the students The

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decided to go off-campus and in case they decided to use his name. This charter issue however was resolved between St.

Louis University and the student staff. The evidence will show -- I'm sorry -- that part of the resolving of the issue that the student staff decided to remain on campus. The evidence will show that a few months

after filing this corporation paperwork Dr. Meyer filed the dissolution paperwork. Yes, Dr. Meyer filed the nonprofit

paperwork without seeking authorization from St. Louis University ; and Dr. Meyer filed a seldomly used letterhead as part of the dissolution of this corporation; however, this ensuing litigation would impress even one of Victor Hugo's inspectors. This trial is over a single count of the Missouri misuse of a benevolent society's name. the statute is put up for us. And on the screen,

And on the screen, there are The statute calls out

portions highlighted of the statute.

different portions, such as "assuming, adopting, or using the name of a benevolent society or assuming, adopting, or using a name so nearly resembling to be a colorable imitation of that name or a name that is calculated to deceive any person." The at-issue statute recites a colorable imitation standard, which is a higher started and a more stricter standard that a likelihood of confusion. SLU's recorded

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benevolent society name is "St. Louis University." Meyer 's not-for-profit corporation was titled, "The

Dr.

University News, a Student Voice Serving St. Louis University Since 1921." The plaintiff's evidence will not show that Dr. Meyer assumed, adopted, or used the plaintiff's benevolent name in this corporation paperwork. The plaintiff's evidence

will not show that Dr. Meyer assumed or adopted or used a name so similar to be a colorable imitation thereof. And,

finally, the plaintiff's evidence will not show that Dr. Meyer, assumed, adopted, or used the name calculated to deceive any person. Further, under equitable injunction principles, the plaintiff 's evidence will not demonstrate that SLU has suffered irreparable injury. The evidence will also show

that SLU admitted that it has not suffered an irreparable injury. The evidence will also show that Dr. Meyer dissolved

this nonprofit corporation before this lawsuit was even filed. Further , the evidence will show that Dr. Meyer has provided assertions to SLU that he has not used this corporation name, other than a registration and dissolution thereof. The parties have been in a relationship longer than So there's a disconnect here; however, the

most marriages.

disconnect is not a violation of Missouri Revised Statute

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417.150 by Dr. Meyer. THE COURT: for you. MR. GILL: THE COURT:

Thank you. Don't sit down yet. I have a question

Sure. This is a case in which the plaintiff is

seeking some specific injunctive relief , one of which is the filing of this Statement of Correction with the Missouri Secretary of State's office . Now, I know that the Articles

of Dissolution have been Filed -MR. GILL: THE COURT: Correct. -- by Dr. Meyer. But this particular

document -- this Statement of Correction -- has never been filed ; is that right? MR. GILL: THE COURT: Not yet. No, Your Honor. That's just one of the items

All right.

of equitable relief that the plaintiff is seeking. The other is an order enjoining Dr. Meyer from using St. Louis University's name either spelled out "S-a-i-n-t" or any similar variation except in the context of identifying himself as being associated with the school. only equitable relief that's being requested? MR. GILL: THE COURT: problem is. Correct. Okay. I don't understand what the And that's the

I don't understand why we're here. If I may, I mean Dr. Meyer is being

MR. GILL:

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called as a witness.

And I -- you know, I would assume that

I can't answer for him -- but he would testify that he has no plans on forming any paper or any corporation using SLU's names or any variant thereof. THE COURT: thing : Well, that's fine. But here's the

You know, I think that the filing of this piece of

paper with the Secretary of State's office, that doesn't seem to be some something that would cause anybody any problem, particularly Dr. Meyer, since he has already dissolved the corporation . And you all have entered into this Stipulation

of Facts in which you've agreed that Dr. Meyer used St. Louis University's name or did not seek the school's permission to use St. Louis University's name in connection with the nonprofit corporation he created. baffled by this. Quite honestly, I'm very

I mean, did you all go to ADR? Yes, Your Honor. Well, that was before, when they were

MR. JANOSKI: THE COURT: more claims.

But I mean it just seems to me if Dr. Meyer is

willing to submit this Statement of Correction and if he is willing to or if you all can reach some kind of stipulation about what use he can and cannot make of St. Louis University's name in the future, those don't seem like very difficult things for you all to agree to, in light of what you've stipulated to. Now, I understand that you don't believe that Dr.

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Meyer has violated the statute.

I understand that there is

an issue of attorney's fees, and I understand that there is some distrust on both sides, in light of some things that have been said and that have been done in the past. there is really not a whole lot here. I mean, clearly, Dr. Meyer knows he can't use St. Louis University's name , except in a limited context. this whole lawsuit, I guess, stemmed from perhaps the Articles of Incorporation but also this newspaper being -well, there was never a newspaper published by the nonprofit corporation but certainly there was some discussion of that possibly happening. And I'm sorry. I just don't know why this isn't If I mean But

something that you all can't reach some resolution of. you can't, that's fine.

I mean I know you're all here and

you're ready to go to trial; and I'm more than happy to hear your testimony. But given the limited relief here -- at

least the equitable relief -- I don't know. MR. GILL: I agree, Your Honor. In the last round

of motions with respect to summary judgment, you know, it did come out that an offer of judgment was made. And obviously

back in the beginning of the lawsuit, it was not accepted. But that's come out in both parties' motions. You know, he would agree to file this paperwork with the Secretary of State. He would agree he is not going to

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have any plans on having a corporation or any newspaper at all more or less using any of SLU's names or variants thereof. You know, I agree, and I wish we could work We have to defend this. And, you know, if we I mean it is an

something out.

I mean we have to defend this. could come to an agreement, if he would.

issue then of I don't know what the plaintiff would ask for with respect to whether this is an admission of wrongdoing? Is this a violation off statute? I don't know what kind of I agree. Mr.

repercussions that would have for him.

Janoski, I know you want to say something. MR. JANOSKI: Your Honor, we probably wouldn't be We

here if we would have gotten the assurances up front. didn't. Contrary to what Mr. Gill has said, St. Louis

University has never gotten any assurance that Dr. Meyer wasn't going to do what he said in that article. Never ever.

He said that he sent me a letter that had those assurances. Never been produced. Probably been destroyed,

if it was ever created at all. of the problem that we had.

And that was, you know, part

Then we didn't know exactly what He destroyed all that

he had done; who had contacted. evidence that we've got here. make the Correction document.

He's never before offered to

I mean we're here because there's been no representation , as Mr. Gill is now making, let's say, to St.

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Louis University. its name.

And St. Louis University has to protect

It does it in many, many instances, whether it's a

commercial activity or whether it is a noncommercial activity; not treating Dr. Meyer any differently than anyone else that goes out and violates their rights. expended money to do this. And they've

I mean they didn't want to do.

I mean we could have had this thing all put aside if early on when he dissolved it, he would have said, "Hey" -well, first of all, he ignored the first letter and we had to draft a Complaint and everything. But, you know, we've gone

down the road because there has never been any assurances, among other things, that he's going to do forward with this. And that's why we're here. THE COURT: it. Okay. Well, I understand the history of

And I didn't mean to suggest that you all didn't make

good-faith efforts to try to resolve this, but here we are. And now what I'm hearing from Mr. Gill is that Dr. Meyer is willing to submit this Statement of Correction. So that

takes care of one item of equitable relief that the plaintiff is asking for. Now, as far as the second part about using the university's name, I think that that's something that Dr. Meyer understands he's not allowed to do that in order to publish a newspaper or to make any kind of representation about the university that he doesn't have authority to make.

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So putting aside before today, where are we? do we need to have all of these witnesses come in and testify? MR. JANOSKI: THE COURT:

I mean

Do you want to give us some time? I would be happy to give you some time.

So we'll take a short recess, and you all let me know what you're ready to resume. Okay? All right.

(Whereupon, a recess took place.) THE COURT: MR. JANOSKI: Well, here we are again. Here we are again, Your Honor. Your

Honor , we have settled Count 7.

And what we would like to do

is tomorrow morning have counsel back with a proposed order. We've taken there of the things that we've submitted to the Court that we have agreed to and that the defendant has agreed to entry of judgment on that. bring that in the morning. And so that we can

I don't think that we have the

ability to do the it right now . THE COURT: MR. JANOSKI: That's fine? So that takes care of that. I have a

question though and certainly with regard to the spoliation. Would you like us to submit like we did on the other -THE COURT: Yes. I will need from you a verified

statement of your attorney's fees and costs in connection with the spoliation motion. MR. JANOSKI: Okay.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 do that.

THE COURT:

I don't know how long it'll take you to

MR. JANOSKI: is Monday.

I could probably have it done -- today

By the end of the week. Okay. That's fine. Why do not you

THE COURT: submit that? MR. NOLTE: THE COURT: MR. NOLTE:

Your Honor, Nelson Nolte. Yes. We would like the opportunity if we

could to respond to that written submission before you order, if you would allow that, Your Honor? THE COURT: Of course. If you've got some concerns

or some challenges to the amounts that are claimed, you'll have the opportunity to do that . MR. NOLTE: THE COURT: Thank you very much. All right? All right. So, tomorrow,

are you going to want to put something on the record tomorrow? MR. JANOSKI: We could probably just bring it to

your chambers, I guess, and just be ready for your signature Really -THE COURT: MR. JANOSKI: THE COURT: MR. JANOSKI: All right. -- is what we anticipate. Okay. That's fine. All right.

Is there a good time for the Court for

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us to come back? THE COURT: MR. JANOSKI: THE COURT: MR. JANOSKI: THE COURT: No, I'll be here. Okay. So whenever you -We can call ahead? Why don't you do that? I know I've got

some things scheduled tomorrow. here.

But, generally, I'll be

Morning, definitely, I'll be here. MR. JANOSKI: We should be able to do this and have

it here; and we'll just call ahead. THE COURT: MR. JANOSKI: time. THE COURT: Thank you. We're in recess. Okay. That's fine. We appreciate your

Thank you, judge.

(Proceedings concluded at 3:45 p.m.)

*

*

*

UNITED STATES OF AMERICA EASTERN DISTRICT OF MISSOURI, EASTERN DIVISION CERTIFICATE

) ) )

ss:

I, Gary Bond, Certified Shorthand Reporter in and for the United States District Court for the Eastern District of Missouri, do hereby certify that I was present at and reported in machine shorthand the proceedings had the 2nd day of March, 2009, in the above mentioned court; and that the foregoing transcript is a true, correct, and complete transcript of my stenographic notes. I further certify that I am not attorney for, nor employed by, nor related to any of the parties or attorneys in this action, nor financially interested in the action. I further certify that this transcript contains pages 1 through 29 and that this reporter takes no responsibility for missing or damaged pages of this transcript when same transcript is copied by any party other than this reporter. IN WITNESS WHEREOF, I have hereunto set my hand at St. Louis, Missouri, this 3rd day March, 2009.

/s/ Gary Bond Gary Bond, RPR, RMR Certified Shorthand Reporter