Document production discussion — Dr. Weir — December 4, 1996 (Day 25)

📄 Document production discussion — Dr. Weir — Wednesday, December 4, 1996

Address:

C:\DEPT103\CIVIL\1996\DEC\4\DOCUMENT-PRODUCTION-DISCUSSION.DOC

TRIAL

▲ Day 25 of 57

◀ Paula Barbieri videotaped deposition Direct examination of Leslie Gardner ▶

Document production discussion — Dr. Weir

Date: Wednesday, December 4, 1996 • Utterances: 28

Defense counsel Blasier requested the court order plaintiffs to produce materials related to Dr. Weir's upcoming deposition — specifically a publication, computer program, underlying data, and new calculations referenced by Mr. Lambert. Petrocelli admitted he didn't know what the witness had access to, prompting a sharp quip from Baker. Judge Fujisaki ordered production of the materials and warned that if they weren't produced, the deposition would be deferred and Dr. Weir's testimony delayed.

# 1 (The following proceedings were held in open court, outside the presence of the jury.)

# 2 MR. BLASIER:

With respect to the deposition tomorrow of Dr. Weir, I would ask that the plaintiffs, since we obviously haven't had a chance to generate any -- I'd ask the Court to order the plaintiff to produce the publication that Mr. Lambert referred to from which these new numbers come from, as well as the computer program that he referred to as being used to generate these numbers, the underlying data that went into the numbers, and the new calculations in a form that my experts can look at.

# 3 MR. PETROCELLI:

Mr. Lambert went back to check with the witness on producing this computer program. I do not know whether the witness has access to this publication, nor do I know anything else about this witness.

# 4 MR. BAKER:

Could you be more vague?

KEY QUOTE

# 5 (Laughter.)

# 6 MR. PETROCELLI:

Your Honor -- in other words, Your Honor, we're checking on it right now. Maybe we could defer this until Mr. Lambert comes back at the break. I'll give him a call. We'll try to -- whatever he has, we'll produce.

# 7 MR. BLASIER:

But the problem is --

# 8 MR. PETROCELLI:

I may not have the publication.

# 9 MR. BLASIER:

If we had known about this in advance, we could good given him notice to produce it what we ordinarily do. If he can't produce it tomorrow, we're going to object to him testifying at all.

# 10 MR. PETROCELLI:

Whatever he has, we'll produce.

We're not going to stand on any notice requirement.

# 11 MR. BLASIER:

We are.

# 12 THE COURT:

Well --

# 13 MR. PETROCELLI:

Can't produce what he doesn't have, Mr. Blasier, is all I'm saying.

# 14 THE COURT:

Mr. Petrocelli, you obviously had it at one time.

KEY QUOTE

# 15 MR. PETROCELLI:

Whatever he has, Your Honor, we'll get it.

# 16 THE COURT:

And I presume he must still have access to it. So I will order him to produce it for the deposition. If he doesn't have it at the deposition, the Court will have to take remedial steps to correct that problem.

And if it's still your desire to use his testimony, it may be that you're not going to be able to use it when you want to use it.

# 17 MR. PETROCELLI:

I'm a little disadvantaged in responding to the Court's questions, but I understand the Court's order.

# 18 THE COURT:

The question is -- it's not a statement. It's -- I'm telling you, if it's not produced and the deposition will have to be deferred, if that's -- if it's your desire to persist in -- your desire to produce that witness, you may have to produce it at some subsequent time.

# 19 MR. PETROCELLI:

Okay, Your Honor.

# 20 THE COURT:

But I'm not going to deny the defense the opportunity to utilize all of the documentation or materials that the expert used in arriving at his figures in conjunction with their deposition.

KEY QUOTE

# 21 MR. PETROCELLI:

Okay.

# 22 MR. BLASIER:

Thank you, Your honor.

# 23 THE COURT:

Are you ready otherwise?

# 24 MS. MOLINARO:

Yes.

# 25 MR. PETROCELLI:

We call Leslie Gardner.

# 26 THE COURT:

We don't have a jury.

# 27 MR. PETROCELLI:

Okay. It's getting late, Your Honor.

KEY QUOTE

# 28 (Jurors resume their respective seats.)

Temperature

procedural

Key Quotes (4)

Robert Baker

Could you be more vague?

A sharp comedic jab at Petrocelli's evasive non-answer about what he knew about the witness and the materials.

Hiroshi Fujisaki

Mr. Petrocelli, you obviously had it at one time.

The judge cuts through Petrocelli's hedging, implying the materials exist and must be produced.

Hiroshi Fujisaki

I'm not going to deny the defense the opportunity to utilize all of the documentation or materials that the expert used in arriving at his figures in conjunction with their deposition.

Clear ruling establishing the defense's right to full expert material disclosure before deposition.

Daniel Petrocelli

Okay. It's getting late, Your Honor.

Petrocelli accidentally calls a witness with no jury present, a small but telling sign of fatigue or distraction.

Evidence (3)

Informal

Publication referenced by Mr. Lambert containing new statistical numbers

ordered produced for deposition

Informal

Computer program used to generate new numbers

ordered produced for deposition

Informal

Underlying data and new calculations used by Dr. Weir

ordered produced for deposition

Notable Exchanges (3)

Daniel Petrocelli•Robert Baker

Petrocelli gave a rambling non-answer about not knowing what the witness had access to; Baker quipped 'Could you be more vague?'

light/sardonic

Daniel Petrocelli•Hiroshi Fujisaki

Petrocelli tried to defer the issue; Fujisaki cut him off by noting the materials obviously existed at some point and ordering their production, with a warning about consequences.

firm/decisive

Daniel Petrocelli•Hiroshi Fujisaki

Petrocelli called a witness with no jury present; Fujisaki reminded him the jury wasn't in the room.

light/tired

Light Moments (1)

Robert Baker

Baker's dry retort 'Could you be more vague?' drew laughter in court after Petrocelli's vague non-answer about the witness materials.

Objections

None recorded

Proceeding 8470 • 28 utterances

Civil Trial

Department 103