Cesari S.R.L. v. Peju Province Winery L.P. et al

Filing 447

ORDER: At the outset, the Court wants to make it perfectly clear that regardless of any issues raised in yesterday's teleconference and the parties' letters of June 27, 2023 and June 28, 2023, see ECF Nos. 445, 446, the trial date, which was set seven months ago, is not moving. We will first address the Court's direction to the parties regarding the submission of exhibit lists. See ECF No. 444. It is the Court's understanding that both parties intend to comply with our order of June 27, 2023 to the extent that they will be submitting a list of all exhibits that they intend to rely on and proffer at trial. See ECF No. 446 at 2. Both parties shall prepare their exhibit lists in chart form to allow the other party to indicate for each exhibit whether it stipulates to or objects to its authenticity and admissibility. See ECF No. 444. For each objection, the objecting party shall briefly identify the basis for the objection, which can be expanded on at trial. The parties should exchange their exhibit charts no later than 6:00 P.M. today, and complete charts with stipulations and objections shall by filed on ECF no later than Friday, June 30, 2023 at 10:00 A.M. The parties are reminded of the importance of the documents upon which the experts rely in that the Court must make findings of fact and determine whether to adopt the experts' opinions in whole or in part. We next address plaintiff's contention that defendants did not timely comply with Fed. R. Civ. P. 26(a)(3). If plaintiff believed Rule 26(a)(3) should be applied here, plaintiff should have brought that issue to the Court's attention weeks ago as it is the responsibility of the parties to raise issues to the Court on a timely basis thus enabling the Court to resolve those issues. In any event, it is the Court's view that Rule 26(a)(3) does not directly apply to this bench trial concerning the sole issue of disgorgement. Moreover, we note that even if Rule 26(a)(3) applied, plaintiff has already received more information than she would have as she has effectively received the direct testimony of defendants' proposed witnesses in affidavits years ago. This discussion is not a ruling on whether th e Court permits the testimony of Ms. Schulz and/or Mr. Lewin as the need for testimony from witnesses other than the parties' experts will be affected by the parties' willingness to stipulate to the authenticity and admissibility of th e underlying factual documents and affidavits. For the parties' guidance, with respect to the affidavits, the parties could stipulate that, if a witness were called to testify at trial, the witness would testify to the content of their affidavit . Such a stipulation would, in effect, treat the affidavit as the witnesss direct testimony, while reserving the ability to cross examine the witness. The use of such a stipulation in no way adopts the content of the affidavit. In conclusion, the length and content of the trial will obviously be affected by the parties willingness to stipulate or not. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 6/28/2023) (vfr)

Case 1:17-cv-00873-NRB Document 447 Filed 06/28/23 Page 1 of 3

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
CESARI S.R.L.,
Plaintiff,

ORDER

- against -

17 Civ. 873 (NRB)

PEJU PROVINCE WINERY L.P., PEJU FAMILY
OPERATING PARTNERSHIP L.P., and PEJU
PROVINCE CORPORATION,
Defendants.
---------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
At the outset, the Court wants to make it perfectly clear
that regardless of any issues raised in yesterday’s teleconference
and

the

parties’

letters

of

June

27,

2023

and

June

28,

2023, see ECF Nos. 445, 446, the trial date, which was set seven
months ago, is not moving.
We will first address the Court’s direction to the parties
regarding the submission of exhibit lists.

See ECF No. 444.

It

is the Court’s understanding that both parties intend to comply
with our order of June 27, 2023 to the extent that they will be
submitting a list of all exhibits that they intend to rely on and
proffer at trial.

See ECF No. 446 at 2.

Both parties shall

prepare their exhibit lists in chart form to allow the other party
to indicate for each exhibit whether it stipulates to or objects
to its authenticity and admissibility.
1

See ECF No. 444.

For each

Case 1:17-cv-00873-NRB Document 447 Filed 06/28/23 Page 2 of 3

objection, the objecting party shall briefly identify the basis
for the objection, which can be expanded on at trial.

The parties

should exchange their exhibit charts no later than 6:00 P.M. today,
and complete charts with stipulations and objections shall by filed
on ECF no later than Friday, June 30, 2023 at 10:00 A.M.

The

parties are reminded of the importance of the documents upon which
the experts rely in that the Court must make findings of fact and
determine whether to adopt the experts’ opinions in whole or in
part.
We next address plaintiff’s contention that defendants did
not timely comply with Fed. R. Civ. P. 26(a)(3).

If plaintiff

believed Rule 26(a)(3) should be applied here, plaintiff should
have brought that issue to the Court’s attention weeks ago as it
is the responsibility of the parties to raise issues to the Court
on

a

timely

issues.

basis

thus

enabling

the

Court

to

resolve

those

In any event, it is the Court’s view that Rule 26(a)(3)

does not directly apply to this bench trial concerning the sole
issue of disgorgement.

Moreover, we note that even if Rule

26(a)(3) applied, plaintiff has already received more information
than she would have as she has effectively received the direct
testimony of defendants’ proposed witnesses in affidavits years
ago.
This discussion is not a ruling on whether the Court permits
the testimony of Ms. Schulz and/or Mr. Lewin as the need for
2

Case 1:17-cv-00873-NRB Document 447 Filed 06/28/23 Page 3 of 3

testimony from witnesses other than the parties’ experts will be
affected

by

the

parties’

willingness

to

stipulate

to

the

authenticity and admissibility of the underlying factual documents
and affidavits.

For the parties’ guidance, with respect to the

affidavits, the parties could stipulate that, if a witness were
called to testify at trial, the witness would testify to the
content of their affidavit.

Such a stipulation would, in effect,

treat the affidavit as the witness’s direct testimony, while
reserving the ability to cross examine the witness.

The use of

such a stipulation in no way adopts the content of the affidavit.
In conclusion, the length and content of the trial will
obviously be affected by the parties’ willingness to stipulate or
not.
SO ORDERED.
Dated:

New York, New York
June 28, 2023
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____________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

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