Gilman v. Spitzer et al

Filing 22

DECLARATION of Jay Ward Brown in Opposition re: 19 MOTION to Dismiss Defendants' Counterclaim.. Document filed by Eliot Spitzer, The Slate Law Group, LLC. (Attachments: # 1 Exhibit 1 (Letter from Dept of Ins. to K. Padgett, Marsh & McLennan Cos. (Oct. 20, 2004) [NYDOI/Gilman-00200]), # 2 Exhibit 2 (2006 License Renewal Questionnaire [NYDOI/Gilman-00126]), # 3 Exhibit 3 (Letter from Dept of Ins. to W. Gilman (Oct. 19, 2006) [NYDOI/Gilman-00001-03]), # 4 Exhibit 4 (Letters from Dept of Ins. to counsel to W. Gilman, R. Spinogatti (June 4, 2007; Sept. 24, 2007; Feb. 1, 2008; Feb. 26, 2008; May 12, 2008; Jan. 18, 2011) [NYDOI/Gilman-00026, 30, 35, 40, 125, 129]), # 5 Exhibit 5 (People v. Gilman, Indictment No. 4800-05, Hrg Tr. 88, Apr. 17, 2008, # 6 Exhibit 6 (People v. Gilman, Indictment No. 4800-05, Hrg Tr. 8, Apr. 23, 2008, # 7 Exhibit 7 (People v. Gilman, Indictment No. 4800-05, Hrg Tr. 36-37, Apr. 17, 2008, # 8 Exhibit 8 (Letter from Dept of Ins. to counsel to W. Gilman, R. Spinogatti (June 18, 2008) [NYDOI/Gilman-00373]), # 9 Exhibit 9 (Letter from R. Spinogatti to Dept of Ins. (June 26, 2008) [NYDOI/Gilman-00128]), # 10 Exhibit 10 (Letter from Dept of Ins. to counsel to W. Gilman, R. Spinogatti (Jan. 28, 2011) [NYDOI/Gilman-00135]), # 11 Exhibit 11 (Letter from Dept of Ins. to counsel to W. Gilman, R. Spinogatti (Feb. 8, 2011) [NYDOI/Gilman-00199]), # 12 Exhibit 12 (Letter from Assemblyman William Bianchi to Governor Mario M. Cuomo, # 13 Exhibit 13 (New York Senate Debate Transcripts, 1992 Chapter 767, Statement of Senator Marchi), # 14 Exhibit 14 (Adelphi University v. Committee to Save Adelphi, N.Y.L.J., Feb. 6, 1997, # 15 Exhibit 15 (Conf. Tr., Dec. 2, 2011))(Brown, Jay)

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1C2JGILC
Conference
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------x
WILLIAM GILMAN,
Plaintiff,
v.

11 Civ. 5843 JPO

ELIOT SPITZER, et al.,
Defendants.
------------------------------x

December 2, 2011
10:54 a.m.

Before:
HON. J. PAUL OETKEN,
District Judge

APPEARANCES

LIDDLE & ROBINSON, LLP
Attorneys for plaintiff
BY: JEFFREY LEW LIDDLE, Esq.
JAMES WILLIAM HALTER, Esq.
Of counsel
LEVINE SULLIVAN KOCH & SCHULZ, LLP
Attorneys for defendants
BY: LEE LEVINE, Esq.
Of counsel
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]

3
Conference
I am inclined to at least temporarily put off a
discovery schedule and remaining schedule in the case and look
at the motions first and try to resolve them fairly quickly, or
at least get a better sense of them, an initial sense of them
before starting full blown discovery in the case, mainly for
the reason that obviously I think it could be much more
efficient if there is a way to resolve the case without getting
into discovery, which is defendant's position.
Also I think an opinion going through some of the
issues raised in the motion for judgment on the pleadings could
have an effect on the scope of discovery and I think getting
that resolved before discovery begins, takes place, I think
could be helpful to the parties in terms of the efficiency of
discovery.
So I am going to hold off on setting a schedule for
the case at this point and just proceed on the basis of the
current briefing schedule on the two motions, and then I'll let
the parties know whether I need argument on the motions and/or
whether I am going to call the parties in to set a schedule as
if I'm reviewing the motions, okay? I think that is all we
need for today unless there is anything else that the parties
want to discuss?
MR. LIDDLE: Your Honor, the only issue that I wanted
to raise, and it has pretty much been preempted by everything
you said, but since we were in line longer than the conference,
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]
1C2JGILC

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1C2JGILC
Conference
I might as well say it, is that we do feel fairly strongly that
it would be appropriate to have at the earliest possible time
the -- and this may not entail any documentary discovery -- the
deposition of the defendant Spitzer and deposition of that
person from Slate who is in charge of the, whatever
fact-checking process did or did not occur.
THE COURT: Do you know who the person or people are
or is?
MR. LIDDLE: Well, I don't know who the person is at
Slate. I am of the, say, semi-educated opinion that there was
no fact-checking, and that might be an answer that we get at
the time that is pursued.
In other words, due to the status of the author as a
former governor and attorney general himself, there was more
latitude given to the facts as he would present them as opposed
to what would happen if, say, I wrote a piece in which they
probably have 10 people on.
THE COURT: I will keep that point in mind.
MR. LIDDLE: Thank you.
THE COURT: I still think what I've said stands
particularly because if, for example, it turns out to be the
case that I'm persuaded that the challenged statements were not
of and concerning the plaintiff, for example, then those issues
aren't relevant, the issues of fact-checking, et cetera, don't
become relevant in the case.
SOUTHERN DISTRICT REPORTERS, P.C.
[phone]