United Realty Advisors, LP et al v. Verschleiser et al
Filing
576
MEMORANDUM OPINION AND ORDER re: (457 in 1:14-cv-08084-JGK, 567 in 1:14-cv-05903-JGK) MOTION in Limine to exclude specific evidence offered by Plaintiffs. filed by Eli Verschleiser. Therefore, the defendants' only argument of unfa ir prejudice evaporates, and the defendants have failed to show why the relevance of the testimony is outweighed by any danger of unfair prejudice. See Fed. R. Evict. 403. The motion in limine is therefore denied. SO ORDERED. (Signed by Judge John G. Koeltl on 10/17/2022) Filed In Associated Cases: 1:14-cv-05903-JGK, 1:14-cv-08084-JGK (jca)
Case 1:14-cv-05903-JGK Document 576 Filed 10/17/22 Page 1 of 5
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED REALTY ADVISORS, LP, ET AL.,
Plaintiffs,
14-cv-5903 (JGK)
- against ELI VERSCHLEISER, ET AL.,
Defendants.
JACOB FRYDMAN, ET AL.,
14-cv-8084 (JGK)
Plaintiffs,
MEMORANDUM OPINION
AND ORDER
- against ELI VERSCHLEISER, ET AL.,
Defendants.
JOHN G. KOELTL, District Judge:
The defendants, Eli Verschleiser, Raul Del Forno, Ophir
Parnasi, and Alex Onica, have filed a motion in limine to
preclude the plaintiffs, Jacob Frydman, United Realty Advisors,
LP, and Prime United Holdings, LLC, from offering at trial any
evidence obtained from Intermedia.net, Inc.
("Intermedia"),
including the deposition of Intermedia employee Ryan Cartmell
dated December 6, 2016. The motion is denied.
The central thrust of the motion in limine is that in a
state court action in 2014, Justice Bransten of the New York
State Supreme Court, New York County, ordered the plaintiffs to
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Case 1:14-cv-05903-JGK Document 576 Filed 10/17/22 Page 2 of 5
return documents obtained from Intermedia and not to use them
because they had been improperly obtained. See Zisholtz Deel.,
Ex. A, ECF No. 567-2. 1 It appears that those documents were
returned. In any event, subsequent to that state court order, in
the course of managing discovery in this case, Magistrate Judge
Cott ordered the defendants in this case to authorize the
production of the documents from Intermedia and the defendants
agreed to do so. See ECF Nos. 201, 202, 203, 206, 207, 212; see
also Oct. 6, 2016 Corif~rence Tr., ECF ~o. 571-1, at 53-54. The
defendants conspicuously ignore this history.
Moreover, in ruling on previous motions in limine, this
Court noted that simply because the plaintiffs' expert testimony
regarding telecommunications records had been precluded because
of the untimely designation of experts by the plaintiffs, that
did not preclude the plaintiffs from presenting fact witnesses
from telecommunications companies to explain the records
produced by those companies. United Realty Advisors, LP v.
Verschleiser, No. 14-cv-5903, 2019 WL 4889420, at *4 (S.D.N.Y.
Oct. 3, 2019).
That is precisely what the plaintiffs seek to do
with the testimony of Mr. Cartmell. Indeed, the defendants
previously conceded that the plaintiffs could use logs obtained
Unless otherwise specified, all citations to ECF entries in
this Memorandum Opinion and Order refer to entries on the docket
in Case No. 14-cv-5903.
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Case 1:14-cv-05903-JGK Document 576 Filed 10/17/22 Page 3 of 5
from Intermedia.
See, e.g., ECF No. 420, at 6 (defendants'
submission stating that a prior Order of the Court "allows
Plaintiffs to present the Intermedia logs"). Therefore, to the
extent that the defendants rely on Justice Bransten's prior
order in the state court case, that order is no bar to the use
of the documents obtained from Intermedia and it is not a bar to
the admission of the deposition of Mr. Cartmell.
With respect to the defendants' evidentiary objections to
the introduction of the deposition transcript of Mr. Cartmell,
those objections also have no merit. First, the defendants were
given numerous opportunities to lodge specific objections to the
deposition of Mr. Cartmell and they failed to do so. The only
objection that they raised was a general objection, raised with
respect to all of the depositions, that the deposition testimony
was hearsay. See ECF No. 431-4, at 12-13 (Dkt. 14-cv-8084). But
the defendants have not disputed that the deposition of Mr.
Cartmell was properly noticed and that Mr. Cartmell is now
unavailable because he lives in California and is not subject to
the subpoena power of the Court. See Fed. R. Evict. 804 (a) (5) (A),
804 (b) (1); see also Fed. R. Civ. P. 32 (a). Therefore, the only
properly noticed objection is overruled.
In the motion in limine, the defendants also raise a series
of arguments that they waived by not raising them in a timely
fashion.
In any event, they are without merit. The defendants
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argue that Mr. Cartmell is giving expert testimony and that he
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has not been designated as an expert. However, his testimony is
proper as testimony of a lay witness testifying about the
documents from the corporation where he works based on his
personal knowledge of those records. That testimony is proper
lay testimony. See, e.g., United States v. Rigas, 490 F.3d 208,
222-24
(2d Cir. 2007)
(employee testifying about company
documents and practices based on his own "personal knowledge of
[the company's] books" gave admissible laywitness testimony
under Fed. R. Evid. 701, not "impermissible expert testimony").
Moreover, Mr. Cartmell's deposition was precisely the type of
testimony that this Court indicated that the plaintiffs could
offer to attempt to prove their case after their expert
testimony was excluded. See ECF No. 493, at 10-11. 2
The defendants also argue that the testimony should be
excluded under Fed. R. Evid. 403, but that argument is premised
011 the allegation that the testimony is based on the
impermissible documents that Justice Bransten ordered to be
returned to the defendants. The defendants fail to explain why
documents that were specifically authorized to be produced by
Magistrate Judge Cott, and which the defendants agreed to
While not specifically raised by the parties, deposition pages
195 to 196 are not admissible because they contain only colloquy
by the lawyers and not testimony by the deponent. See Cartmell
Deposition Tr., ECF No. 564-1, at 195-96.
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Case 1:14-cv-05903-JGK Document 576 Filed 10/17/22 Page 5 of 5
produce, see ECF No. 571-1, at 53-54, are improperly used in
this case. Therefore, the defendants' only argument of unfair
prejudice evaporates, and the defendants have failed to show why
the relevance of the testimony is outweighed by any danger of
unfair prejudice. See Fed. R. Evict. 403.
The motion in limine is therefore denied.
SO ORDERED.
Dated:
New York, New York
October 17, 2022
( /sohn G. Koel tl .
Unite~tates District Judge
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